Heard the learned counsel for the petitioner and learned standing counsel Smt. P.K.Radhika for the Electricity Board. The petitioner is a High Tension Industrial (HT-1) consumer and is supplied under Exhibit P1 HT agreement executed between the petitioner and the KSEB on 06.08.1998.
2. There was a lock-out in the factory from 10.08.1998 to 03.06.1999 and consequently the factory remained closed during the said period. Work at the factory resumed with effect from 04.06.1999. The District Labour Officer, Kottayam has certified to that effect.
3. On invoking Clause 17 of Exhibit P1 agreement, the petitioner submitted a W.P.(C).NO. 2231 OF 2006 2 representation before the Special Officer (Revenue) and claimed rebate in the 'minimum annual revenue' guaranteed by the petitioner. According to the petitioner he had paid total current charges of Rs.8,62,343/- for the financial year 1998-1999 and Rs.7,48,950/- for the financial year 1999-2000 whereas the 'minimum annual revenue' guaranteed by him under Clause 16(b) of Exhibit P1 agreement was only Rs.3,28,414/- for the financial year 1998- 1999 and Rs.5,53,129/- for the financial year 1999- 2000. Therefore in total, the petitioner claimed rebate of Rs.3,43,524/- as per Exhibit P6 tabulation sheet.
4. However, the KSEB granted a rebate of only Rs.32,702/- instead of Rs.3,43,524/- claimed by the W.P.(C).NO. 2231 OF 2006 3 petitioner. Therefore relying of Exhibit P9 order dated 21.05.2005, it is relevant to quote Clause 10, 16(b) and 17 of the Exhibit P1 agreement for ready reference:
"10. For the purpose of this agreement the maximum KVA demand will be the average of the quantities of KVA delivered to the point of supply of the consumer recorded during any consecutive 30 minutes period if maximum use in the month registered by the 11 KV metering equipment installed near the point of supply. This is also defined as twice the largest number of KVA-H supplied and taken during any consecutive thirty minutes in the month. The demand based on which the consumer will be billed for a month (Billing demand) shall be
a) Actual maximum Demand established during the month rounded to the nearest integer in KVA OR
b) 75% of the contract Demand OR
c) 50 KVA, whichever is higher."
"16) b. The consumer shall not be responsible for non-consumption of energy due to lockout, strike of employees of the consumer, major breakdown of, machinery/plant, which to the satisfaction of the Board is responsible for the non-consumption of energy, or other force major condition over which the consumer has no control but shall resume consumption of energy as soon as he reasonably can. In such cases where the consumer is unable to consume energy, he shall promptly intimate the W.P.(C).NO. 2231 OF 2006 4 Board, the reason for such non-consumption. In any event the consumer shall be bound to pay to the Board the minimum annual revenue guaranteed by the consumer and specified in the schedule appended herewith, irrespective of the question whether any energy has been consumed or not, whatever be the reason for non-consumption and also irrespective of actual quantity consumed. However, the Board shall have the right to take periodical shutdown as and when required for the purpose of routine maintenance after giving reasonable notice to the consumer and in such an event no claim of any kind for rebate or refund of charges on this account etc. shall be entertained by the Board.
17) If at any time the consumer is prevented from receiving of using the electrical energy to be supplied under this agreement either in whole or part owing to any strike, riots insurrection, command of a civil or military authority, fire, explosive, act of god any other cases reasonably beyond control if the Board is prevented from supply or is unable to supply such electrical energy owing to all or any of the cases mentioned above, then the minimum revenue or minimum guarantee payable by the consumer for the month shall be reduced for the period in proportion to the ability of the consumer to take or the Board to supply such power, inability being reckoned proportional to the energy consumed during the month in question in relation to the average consumption for the six normal months immediately proceeding the said period, this will be without prejudice to the provisions contained in clause 16 above. Also period of non-consumption of less than seven consecutive days will not be considered for operation of this para."
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5. The issue involved in this writ application is whether on a reading of all these clauses the petitioner is entitled to a rebate on both energy charges as well as the demand charges particularly when closure is not disputed because when the board has paid Rs.32,702/- towards demand charges and rebate.
6. The learned counsel for the petitioner, on a reading of Exhibit P1 agreement, submitted that the Board Order No. Plg. Com PC/802/84 dated 01.01.1985 contained rebate for both demand charges and energy charges, and are considered for computation of the minimum annual revenue guaranteed by the consumer as per Exhibit P9 Board Order and by virtue of Clause 20 of Exhibit P1 W.P.(C).NO. 2231 OF 2006 6 agreement the Board Order dated 01.01.1985 referred to above was clearly deemed to be a part of the agreement executed between the Board and the consumer. Therefore the Board cannot riggle out from its own agreement which they have themselves assured while entering into the agreement.
7. The learned counsel for the petitioner further submits that in view of the admission of Exhibit P9 order that both demand and energy charges were being considered for considering minimum annual revenue guaranteed to the consumer, the Board has no option other than to pay the rebate to the petitioner as assured and agreed to. It is further submitted that the subsequent Board Order dated 12/2/2005, cannot have retrospective W.P.(C).NO. 2231 OF 2006 7 application to the petitioner's case who speaks only about demand charge and not about energy charge. Therefore, the petitioner is entitled to a rebate of Rs. 2,44,539/- if 1985 Board Order is taken into consideration.
8. Adv. Mrs. Radhika, the learned standing counsel appearing for KSEB vehemently objected to the stand taken by the petitioner and submits that on a reading of Clauses 16 and 17 of the agreement executed by the petitioner, the rebate of maximum demand will be assessed on the basis of demand charges. She further states that as per the agreement the rebate on minimum demand charges is admissible only if the following conditions are satisfied by the consumer.
W.P.(C).NO. 2231 OF 2006 8
"a. Consumer shall remit minimum annual return guaranteed in the year.
b. The period of non-consumption shall exceed 7 days.
c. The consumer shall resume consumption of energy as soon as reasonably he can.
d. The consumer shall, promptly intimate the Board the fact of his inability to consume energy supplied by the Board and its reason."
She further states that on a reading of Clauses 16 & 17 of the agreement, the irresistible conclusion is that the petitioner is entitled to a rebate on demand charges and not on energy charges. She further states that since at the time of consideration of Exhibit P9, 2005 Board Order was in vogue, the petitioner cannot take the benefit of previous Board Order which was not in vague at the time of consideration of the petitioner's case.
9. Adv. Smt. Radhika, the learned standing W.P.(C).NO. 2231 OF 2006 9 counsel for KSEB further submits that in view of Clause 22 of the agreement, the petitioner is entitled to only a rebate on demand charges. Clause 22 of the agreement is quoted hereunder for ready reference:
"22) The schedule appended hereto shall form part of this agreement. The minimum revenue per month guaranteed by the consumer in the schedule is liable to revision from time to time as per rules and tariff notification in force the time and such revised minimum revenue per month determined by the Board shall be payable by the consumer.
SCHEDULE
1.Description of premises at which the supply is to be given : M/s. Leo Rubbers, Nattakom, Kottayam
2.Purpose for which the supply is to be given : Rubber mixing & moulding
3.Tariff for supply : HT-1
4.Category of service HT Industrial/Seasonal load : HT-Industrial
5.Purpose/period (seasons months from) : N.A.
6.Contract demand : 300 KVA at 11000 Volts.
7.Minimum revenue per year guaranteed by the consumer : Twelve time the demand charges per month corresponding to 75% of the contract demand or 50 KVA whichever is higher plus other minima such as minimum guarantee for line extension service connection etc. payable by the consumer as per agreements/rules. Fixed charge part viz. Demand charges shall be excluded in computing the liability to pay such minima (minimum guarantee amount if any and period for which it is payable may be specified here)."
10. In my considered view when the Closure is not disputed, the petitioner is entitled to a rebate as assured by the agreement as well as 1985 Board Order. Since 1985 Board Order is a part of the agreement, it shall also govern the field. The Board having paid 32,702/- towards rebate on demand charges, It cannot riggle out from its own agreement. Therefore, I find that the petitioner is W.P.(C).NO. 2231 OF 2006 11 entitled to a rebate on both energy charges as well as demand charges. Accordingly, the impugned order is set aside and I direct the respondents to release balance amount of Rs.2,44,539/- within two months from the date of receipt of a copy of this judgment, failing which the Board shall pay 18% interest from the date of claim till the date of payment.
The Writ application is disposed as above.
B.P.RAY (JUDGE).
DSV/-
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