All these writ petitions have been filed by a common petitioner and therefore decided by a common judgment.
2. W.P.C.No.21417 of 2009 has been filed challenging Exts.P12 and P14, for a declaration that the electricity supply effected to the petitioner's industrial unit on 27/06/2009 in the light of Ext.P2 Board order and for a declaration that the respondents are not entitled to collect any amount other than those mentioned in Ext.P2 for getting reconnection.
3. The facts involved in this case would disclose that the petitioner being an industrial unit, started commercial production on 30/01/1995. The unit was closed on 27/09/2001. Government of Kerala announced certain benefits to closed industrial units which, according to the petitioner, was adopted by Kerala State Electricity Board (KSEB) as per Ext.P2 Board order. According to the petitioner, based on Ext.P2 order, though steps were taken to restart the unit, supply was not given to the petitioner's industrial unit. Petitioner filed W.P.C.No.36490/2008 which was disposed of by judgment dated 09/01/2009 indicating that KSEB will take a decision in the matter within one week. Matter was heard by the Secretary, Industries Department in the presence of KSEB officials. It was decided that on the petitioner paying the principal amount, power connection can be given to the unit. Petitioner issued a cheque of Rs.26,45,103/- for the entire principal amount and requested for waiver of the interest. Petitioner was called upon to pay duty arrears amounting to Rs.2,34,522/- as per Ext.P7 letter dated 04/02/2009. Thereafter, despite a direction issued by the Special Officer, Revenue, petitioner was called upon to remit an amount of Rs.13,50,493/- towards the cost of work in the distribution side for re-effecting supply to the firm.
Ext.P9 is the said demand. Petitioner challenged the same by filing W.P.C.No.6134/2009, in which, this Court, issued an interim order dated 03/04/2009 directing the petitioner to remit an amount of Rs.36,00,493/- and the KSEB was directed to reconnect the supply. The matter was taken up before the Division Bench in W.A.No.925/2009. Judgment was modified by the Division Bench as per judgment dated 08/04/2009 permitting the petitioner to remit Rs.16,00,000/- towards deficit of security deposit within two weeks. The Board filed a review petition which was disposed of on 09/06/2009 whereby directions were issued to pay balance amount in six equal monthly instalments. The power connection was re-effected on 27/06/2009. Demand was raised for service connection charges by way of Ext.P12 dated 23/06/2009. Though the petitioner denied the liability to pay the said amount by way of Ext.P13 representation, again demand was made in terms of Ext.P14 for the very same amount as stipulated in Ext.P12. Petitioner relies upon certain Government orders by way of Exts.P15 and P16 and contends that Government of Kerala has waived the minimum demand charges for electricity for closed industrial units which were planning to reopen and start functioning. It is, therefore, contended that the respondent Board has no authority to demand such huge amounts. They were bound to offer the benefits given by the Government. It is, in this background, that they challenge Exts.P12 and P14.
4. Counter affidavit and additional counter affidavit have been filed by KSEB. It is inter alia contended that as on 23/03/2006, revenue recovery proceedings were initiated against the petitioner and the amount due was 1,03,95,384/-. The petitioner's premises was located in the land allotted by the Industries Department. The Industries Department had resumed the land on 03/09/2008. As such, the petitioner was not entitled to the benefit of Ext.P2 order. The resumption order was cancelled only on 08/01/2009 and the land was given back to the petitioner. Therefore the petitioner could not have made any application on 29/11/2008. As on 31/12/2008, which was the cut off date for reopening operations, petitioner was not in possession of any land. With reference to Exts.P12 and P14, it is submitted that the petitioner was not an existing consumer and the supply was not reconnected. The connection to petitioner's company was dismantled even before KSEB started revenue recovery proceedings. Therefore, petitioner ceased to be an existing consumer as on the date when the connection was dismantled. It is contended that there is no provision for reconnection of dismantled industrial services as per clause 41(5) of the KSEB, Terms and Conditions of Supply, 2005. When industrial units are closed, they are liable to pay minimum demand charges till the date of dismantling even if no power is consumed. Therefore when a closed unit approaches KSEB, they have to remit the minimum demand charges before processing their application. It is contended that the remittance to be made by the industry is governed by the Kerala Electricity Supply Code and KSEB Terms and Conditions of Supply, 2005, which is not covered by Ext.P2 order.
5. In the additional counter affidavit, it is submitted that as per Clause 7 of the Kerala Electricity Supply Code, 2005, the Regulatory Commission authorises the licensee under Section 46 of the Electricity Act, 2003 to recover from the owner or occupier of any premises requiring supply, the expenses reasonably incurred by the licensee for providing any electric line or electrical plant required for the same. Relevant Board orders are also relied upon to substantiate the aforesaid facts by way of Exts.R1(d) and R1(e). Specific reference has been made to Ext.R1(b) Board order dated 19/2/2009 by which KSEB decided to provide power connection to the petitioner on complying with the conditions stated therein. Therefore, according to KSEB, the petitioner was under obligation to pay the charges which were required to be paid as provided under the said Board order dated 19/02/2009. Subsequent orders are pursuant to the said order dated 19/02/2009 and Exts.P12 and P14 which are impugned have also been issued on that basis.
6. W.P.C.No.22771 of 2009 is filed seeking for a mandamus to direct the respondents to treat the petitioner as an existing power consumer and to levy energy charges at the rate applicable to such power consumers and to quash Ext.P14 to the extent treating the petitioner as a new unit. Ext.P14 is the bill issued by the Board for payment of Rs.14,266/- being the charges for electricity supplied. According to the petitioner, since they started commercial production on 30/01/1995 and by virtue of Government order dated 30/08/2008 (Ext.P2) the power connection was restored, the tariff applicable to them has to be based on the fact that the petitioner is an existing consumer and cannot be treated as a new consumer where a different tariff applies.
7. W.P.C.No.23912/2009 is filed seeking to quash Exts.P17, P17(a) and P20. Ext.P17 is an agreement executed between the petitioner and the KSEB. Ex.P17(a) is the supplemental agreement. Ext.P20 is the demand made for an amount of Rs.6,50,469/- for the energy supplied. The contention urged by the petitioner is that there was no reason to execute Exts.P17 and P17(a) and those are liable to be discarded in the light of H.T agreement executed as Ext.P4 in May 1994. Since the connection given pursuant to Ext.P6 Board order is a reconnection, there was no reason to execute any new agreements. Petitioner is entitled to get the status of an existing consumer to which power allocation was given in the year 1993 and therefore while seeking to quash the above agreements and bills, petitioner also seeks for a direction to treat him as an existing consumer. By Ext.P20, a demand has been made for energy charges at the rate of Rs.3.50/- per unit and also penalty for the said amount. It is contended that as per the notification issued with effect from 01/12/2007, the energy charges for HT consumers that is HT industrial consumers is only Rs.3/- if the industries have been allotted before 17/12/1996. Therefore the argument is that the energy charges ought to have been fixed @ Rs.3/- per unit and not at Rs.3.50/- per unit.
8. Counter affidavit is filed by the respondents inter alia contending that when the supply of the petitioner was disconnected for non-payment of bills on 11/10/2002, KSEB waited for six months as per rules and since the petitioner failed to clear the arrears, the connection was dismantled on 30/05/2003 with due notice. On such dismantling, the petitioner has lost all its entitlements on the contract demand of 500 KVA. KSEB has issued allocation to other applicants who were waiting for power at the relevant time.
9. Similar contentions have been urged, as contended in the counter affidavit in the earlier writ petitions. Further, it is stated that demand for electricity charges issued for the month of July 2009 is in order and there is no irregularity in Ext.P20. Petitioner is a new consumer and therefore new consumer number has been given and fresh agreement has been executed pursuant to directions issued by this Court in W.P.C.No.6134/2009. Hence it is contended that there is no arbitrariness in the bill issued and Exts.P17 and P17(a) are in order.
10. W.P.C.No.31193/2012 is filed seeking to quash Ext.P8, P9 and P10. Ext.P8 is a notice dated 28/11/2012 issued under Section 56(1) of the Electricity Act, 2003 by which petitioner was called upon to pay an amount of Rs.22,16,910/- as arrears of current charges for the periods February, March and April 2010. Ext.P9 is the demand notice of December 2012 claiming an amount of Rs.23,88,061/-. The statement annexed shows the details of interest charged on the consumer for the delayed payment.
11. It is inter alia contended that Ext.P8 is issued with mala fide intention on account of the petitioner having obtained various orders from the court. Petitioner relies upon the judgments of this Court in order to contend that petitioner was paying the amounts in time. Further directions sought for in the writ petition is to continue supply to the petitioner's premises without insisting for payment covered by the aforesaid bills.
12. W.P.C.No.18384 of 2013 is filed seeking to quash Ext.P5 and for a direction to the 2nd respondent to refund the excess security deposit collected from the petitioner along with interest on the security deposit for the past four years @ 9% per annum. The averments in the writ petition disclose that having stated about the manner in which the electricity connection had been restored, petitioner complains about Ext.P5 demand dated 29/06/2013 calling upon the petitioner to remit an amount of Rs.6,61,108/- towards security deposit. In Ext.P5 it is stated that the two month's probable amount of current charges would come to Rs.22,78,580/- and the security deposit available is only Rs.16,17,472/-. Since the petitioner has already given a security deposit of Rs.20,25,816/- and a bank guarantee for Rs.5,89,860/- which, according to the petitioner, is in excess of the security required.
13. Statement is filed on behalf of the respondents. It is stated that petitioner has furnished bank guarantee on 11/06/2013 and additional security deposit invoice is revised to Rs.88,720/- and revised demand notice dated 29/06/2013 has been issued as per Ext.R1(a), which, according to the respondent, is liable to be remitted by the petitioner. The petitioner, however, had given a calculation statement showing the amount available as security deposit with interest. It is contended that the respondents had failed to compute interest on the security deposit given by the petitioner.
14. Heard the learned counsel for the petitioner and learned senior counsel on behalf of KSEB and the learned Government pleader.
15. The issue projected by the petitioner in these writ petitions are substantially settled by an inter parte judgment of the Division Bench of this Court in Kerala State Electricity Board & Ors. v. Hamsaveni Carbides Ltd. [2014(1) KLJ 657]. The issue considered by this Court was whether the petitioner was entitled to get reconnection of the power supply without any additional payment which was sought to be recovered. This Court, after referring to the Government order and the subsequent Board orders, have come to the conclusion that the said documents do not contain any promise from the Government or Board to waive the cost, if any, which they are entitled to realise. It is found that petitioner could not establish any factual foundation for a case of promissory estoppel. Since the power connection is dismantled and they are ordered to be given reconnection, it may not be possible to hold that no charges for infrastructural development can be realised. Further in paragraph 25, it is found that the Board is entitled to recover in advance from the consumer requiring supply, the expenses reasonably incurred by it for providing electric line or electrical plant required for the purpose of electrical supply. In the absence of any promise to render any other benefit, board is entitled to recover such dues. Paragraphs 22 and 25 are relevant which reads as under:
"22. These communications, which are relied on by the learned counsel for the 1st respondent, therefore, in our view, do not contain any promise from the Government or Board to waive the cost, if any, that they are entitled to realise. Faced with such a situation, learned counsel for the 1st respondent contended that in Ext.P3 Board order, consumers like them whose power connection are dismantled, are ordered to be given reconnection and that when reconnection is given, no charges for infrastructural development is realised. Therefore, the attempt of the learned counsel for the 1st respondent was to persuade us to infer a promise from the terms of Ext.P3, Board order. As we have already held, a promise should be clear, definite, unequivocal and should be one meant to be acted upon, to set up a plea of promissory estoppel. This plea cannot be founded upon mere inferences and surmises, as attempted by the learned counsel for the 1st respondent. In other words, the 1st respondent did not establish any factual foundation for a case of promissory estoppel that was pleaded by it. Therefore, on facts, we conclude that there is no promissory estoppel made out by the 1st respondent."
"25. From these statutory provisions that we have referred to, it is clear that the Board is entitled to recover in advance from the consumer requiring supply, the expenses reasonably incurred by it for providing electric line or electrical plant required for the purpose of giving such supply. Once we accept that the statutory provisions entitle the Board to recover such expenses, the further question that arises is whether the principles of promissory estoppel can in any manner come in the way of the Board in recovering such dues. In our view, the answer has to be in the negative and this position has been clarified by a line of judgments of the Apex Court. The three judgments that were cited at the Bar are Delhi Cloth and General Mills Ltd. v. Union of India ((1988) 1 SCC 86), Pawan Alloys & Casting Pvt.
Ltd. v. U.P.S.E.B ((1997) 7 SCC 251) and Monnet Ispat and Energy Limited v. Union of India and Others ((2012) 11 SCC 1)."
In the light of the aforesaid judgment, much does not survive as far as the case projected by the petitioner is concerned. Now I shall answer the contentions urged in the respective writ petitions.
16. In W.P.C.No.21417/2009, the challenge is with reference to Exts.P12 and P14 based on the contention that the Board cannot collect any amount other than reconnection charges. This issue is squarely covered by the judgment in Hamsaveni (supra). This Court had considered identical contentions raised in the matter and found that KSEB is entitled to recover the expenses reasonably incurred for providing electric line. Once the connection is dismantled, it amounts to a new connection and a contrary contention cannot be taken by the petitioner. Hence W.P.C.No.21417/2009 is liable to be dismissed.
17. In W.P.C.No.22177 of 2009, the relief prayed for is to treat the petitioner as an existing consumer and to quash Ext.P14. This contention is also baseless, going by the statutory provisions. This is an instance where the petitioner's connection has been dismantled and whenever a reconnection is given, it amounts to a new connection and the rules regulating to new connection applies. When the Statute permits the KSEB to demand various charges for providing connection, it is not open for the consumer to challenge the same. Accordingly the writ petition fails and is to be dismissed.
18. In W.P.C.No.23912/2009, petitioner again challenges the agreements voluntarily executed by them and the corresponding bill issued demanding energy charges @ Rs.3.50/- per unit. As already held, the power connection of the petitioner has been dismantled and based on certain concessions, further connection has been given for which a new agreement has been executed, petitioner has voluntarily executed the said agreement and cannot insist that the 1994 agreement has to remain in force. The 1994 agreement has lost its validity on dismantling of the power connection. Therefore, when a new connection is given, the applicable tariff can be demanded by the KSEB. This writ petition also fails and is liable to be dismissed.
19. In W.P.C.No.31193/2012, the contention urged is with reference to a demand made by Ext.P8, P9 and 10. No materials are available before this Court to arrive at a conclusion regarding the illegality of such a demand. Petitioner has a case that no such amount is payable. In such event, remedy of the petitioner is to challenge the demand by approaching the forum provided for raising such complaints. Hence this writ petition is dismissed without prejudice to the petitioner to approach the Consumer Grievance Redressal Forum as provided under the Kerala State Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electrical Ombudsman) Regulations, 2005.
20. In W.P.C.No.18384/2013, the issue is only with reference to a demand for security deposit. In the statement filed, it is indicated that the demand made had been revised as per Annexure R1(a). Petitioner's contention is that the interest on the security deposit is also computed for arriving at the security amount. Such a procedure is not available under the provisions of the Statute. Security deposit is claimed for the probable amount of consumption of power. Of course, interest is liable to be paid at the time of refund. But it does not indicate that the interest will be added on and treated as security. This writ petition is therefore without any basis and is liable to be dismissed.
In the result, these writ petitions are dismissed without prejudice to the right of the petitioner to approach the Consumer Grievance Redressal Forum to challenge the bills in W.P.C.No.31193/2012.
(A.M.SHAFFIQUE, JUDGE) jsr