K.T.SANKARAN,J The appellant started an industrial unit by name, “Janaki raj Rubber Industries”, Karunagappally in the year 1986. It is stated that for establishing the industry, the appellant took a loan of Rs.13.5 lakhs from the Kerala Financial Corporation (for short, KFC) under the Technocrat Assistance Scheme. It is stated that the appellant availed electricity connection with a maximum connected load of 90 HT. According to the appellant, it was under LT Tariff. The Industrial Unit became sick and KFC took over the unit under Section 29 of the State Financial Corporation Act, with effect from 7.11.95. 2. It is also averred that almost six years thereafter, in 2001, a notice was served on the appellant under Section 7 of the Revenue Recovery Act demanding an amount of Rs.6,72,749/- as electricity dues. A series of correspondences and legal proceedings followed, the details of which are not necessary for the disposal of the writ appeal.
3. On 18.8.2010, the appellant was served with an order dated 11.8.2010 issued by the Board fixing the dues at Rs.6,99,963/- and directing the appellant to deposit the amount within 15 days. That was challenged by the appellant in WP(C) No.27083 of 2010. An interim order was passed in the above writ petition directing the appellant to deposit Rs.2,00,000/-. Though the appellant challenged the interim order in W.A.No.1729 of 2010, that did not end in favour of the appellant. Thereafter, the appellant deposited a sum of Rs.2,00,000/- in compliance with the interim order. It is stated that after passing the above interim order, appellant submitted a representation dated 17.6.2011 praying to convert the appellant's tariff from HT to LT. Thereupon, the Secretary to the Board directed the Deputy Chief Engineer, Kollam to make a detailed calculation of the electricity charges as per the LT Tariff. It is also stated that the Executive Engineer made a detailed calculation and arrived at a finding that the appellant was liable to pay only Rs.1,51,276/- as evidenced by Ext.P10 and Ext.P11 in WP (C)No. 4091 of 2014. The appellant submitted a representation to the Chairman of the Board requesting to refund the alleged excess amount paid by him in the light of the fresh calculation made. That was not granted by the Board and the Board issued an order dated 30.12.2013 reworking the amount at Rs.13,23,830/- and requesting the appellant to avail the benefit of One Time Settlement Scheme (for short, 'OTS Scheme'). The appellant challenged the same in WP(C) No.4091 of 2014.
4. In the counter affidavit filed on behalf of the respondents, it was contended that as per the direction of this court in O.P.No.14016 of 2001, the appellant was afforded an opportunity of personal hearing and the OTS facility was afforded to the appellant. It is contended that Ext.P11 in WP(C)No.4091 of 2014 is only a reply to the communication received from the Special Officer (Revenue) on the question as to what would be the monthly dues of the consumer from June 1991 onwards, if calculated under the LT Tariff. It does not mean that the appellant is eligible for LT Tariff from 6/1991 onwards. It is also contended that Ext.P11 is only an “intra office communication”. It was only for the purpose of comparison. No interest component was incorporated against monthly charges in Ext.P11. Ext.P11 is not binding on the Board nor does it confer any right on the appellant.
5. The respondents also contended that LT Tariff was granted to the appellant only from 1.3.1995 and it is evident from Ext.P13 letter dated 30.12.2013 issued by the Board to the appellant. The appellant did not avail the facility of OTS Scheme. Had he availed the OTS Scheme, the interest arrears would have been considerably reduced to Rs.4,09,786/- instead of Rs.10,59,514/- as on 30.11.2013. OTS facility was available upto 31.3.2014.
6. The respondents also contended that the claim of the appellant that billing should be made at LT Tariff from June 1991 onwards is unsustainable. It is contended that the appellant never complied with the requirements for conversion of the supply from HT to LT.
7. The learned Standing Counsel appearing for the Board submitted that the original power allocation to the appellant was for 250 KVA with connected load of 135 HP. If the connected load is above 100 HP, it is to be considered as HT tariff. It is also submitted that the actual connected load at the time of execution of the agreement was 100.5 HP and the appellant requested to change to LT Tariff only on 30.08.94.
8. In the counter affidavit, it is also stated thus:-
“However, being a dismantled consumer and an old case the Board has decided to sanction LT tariff to the consumer with effect from 1.3.95. Accordingly, the demands for the period from 1.3.95 till date of dismantling the connection was revised at LT rate”.
9. The appellant filed WP(C)No.27083 of 2010 challenging the order dated 17.11.2009 extending the benefit of OTS scheme on certain conditions, Exhibit.P7 notice dated 2.7.2010 issued under Section 39 of the Revenue Recovery Act and Ext.P9 order dated 11.8.2010 issued by the Board directing the appellant (writ petitioner) to deposit Rs.6,99,963/- towards arrears of electricity charges for the period from June 1991 to November 1996 together with interest as per the decision taken in the Revenue Adalath.
10. The learned Single Judge disposed of both the writ petitions filed by the appellant by a common judgment dated 24.6.2014. The learned Single Judge noticed that the request of the appellant to consider him under LT Tariff was accepted with effect from the date of receipt of the application and despite repeated offers made by the Board to avail the benefit of OTS, appellant did not choose to settle the arrears. In the concluding paragraph of the judgment, the learned Single Judge held thus:-
“Under the above mentioned circumstances, these writ petitions deserve no merit. However, it is made clear that petitioner will be at liberty to avail benefits of the 'One Time Settlement Scheme' if any in force at present. So also the petitioner will be at liberty to approach the Board seeking waiver of surcharge (interest) in case such Scheme is not in force at present. Consideration of such request will depend upon conditions if any imposed with respect to payment if any insisted by the Board. The amounts if any paid pursuant to the interim order passed by this court shall be appropriated against the dues under such settlement if any arrived”.
11. After having considered the rival contentions put forward by the parties and after perusing the pleadings and hearing the arguments, we do not find any justifiable ground to interfere with the judgment of the learned Single Judge. It is true that the industrial unit of the appellant was closed down due to the taking over of the unit by KFC. At the same time, it is to be noted that had the appellant cleared the electricity arrears in time, he would not have been liable to pay a huge amount which comprised interest component and surcharge. The contention raised by the appellant that in Ext.P11, the liability of the appellant was fixed at Rs.1,51,276/- cannot be accepted. Ext.P11 is only a departmental addressed to the appellant. The learned Single Judge held that the appellant would be entitled to avail the OTS scheme if any in force at present. It was further held that the appellant would be entitled to approach the Board seeking waiver of surcharge (interest) in case such scheme is not in force. In addition to the directions issued by the learned Single Judge, we think it proper to issue a direction to the Board to recalculate the amount taking into account the payment of Rs.2,00,000/- as per the interim order passed by this court and to recompute the interest taking into account such payment. On perusal of Ext.P14, it is not clear as to the rate of interest applied to the principal amount. The principal amount for the period from 6/91 to 9/96 is shown as Rs.2,64,236/- while the interest upto 30.11.13 is worked at Rs.10,59,594/-. It is submitted by the learned counsel for the Board that the interest calculated is at 6% under the OTS scheme. On a bare perusal of Ext.P14 in W.P.No.4091 of 2014, it is seen that the interest is not calculated at 6%. Ext.P14 further shows that if interest is calculated at 6%, the interest component would come to Rs.1,45,550/-. We are of the view that the interest at 24% would be excessive and even if OTS scheme is not applicable, appellant would be entitled to get recalculation of the dues taking interest at 8% per annum. If OTS scheme is available, interest at 6% shall be taken as provided in Ext.P14 communication dated 30.12.2013. The Electricity Board shall issue a revised demand showing the amounts due from the petitioner, taking into account the interest at 8% per annum and also at 6% per annum. If OTS scheme is available, the communication should show as to the same and appellant should be afforded a reasonable opportunity to avail the same. We also direct the KSEB to grant six months' time to the appellant to clear the arrears in six equal monthly instalments, if OTS scheme is not available. A detailed communication in this regard shall be issued by the Board to the appellant as early as possible and the period of six months granted to clear the instalments will commence from the date of service of such notice.
12. Accordingly, Writ appeals are allowed in part and the judgment of the learned Single Judge is modified to the extent indicated above.
K.T.SANKARAN, JUDGE P.D.RAJAN, JUDGE lgk/08/10/14