Kerala High Court
Lourdes Hospital Ernakulam vs Kerala State Electricity Board on 6 April, 1998
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936
WP(C).No. 30917 of 2005 (E)
----------------------------
PETITIONER:
-------------------
LOURDES HOSPITAL ERNAKULAM,
COCHIN, KERALA,
REPRESENTED BY ITS DIRECTOR, REV.FR. FRANCIS.
BY ADV. SRI.BECHU KURIAN THOMAS
RESPONDENTS:
-----------------------
1. KERALA STATE ELECTRICITY BOARD,
VAIDYUTHI BHAVAN,
THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY.
2. DEPUTY CHIEF ENGINEER,
KSEB, ELECTRICAL CIRCLE, ERNAKULAM.
3. THE EXECUTIVE ENGINEER,
ELECTRICAL MAJOR SECTION, KSEB,
PACHALAM, ERNAKULAM.
R1 TO R3 BY ADV. SRI.T.R.RAJAN,SC,K.S.E.B.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-
2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMG
W.P (C) No.30917/2005
APPENDIX
PETITIONER'S EXHIBITS
EXT- P1- TRUE COPY OF THE BILL DATED 06-04-1998.
EXT- P2- TRUE COPY OF THE REPRESENTATION DATED 15-04-1998
SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.
EXT- P3- TRUE COPY OF THE REPRESENTATION DATED 10-01-2000
SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT.
EXT- P4- TRUE COPY OF THE ORDER OF POWER ALLOCATION
DATED 28-02-2002.
EXT- P5- TRUE COPY OF THE ROUGH STATEMENT OF DEMAND.
EXT- P6- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER IN THE YEAR 2002.
EXT- P7- TRUE COPY OF THE REPRESENTATION DATED 21-01-2004.
EXT- P8- TRUE COPY OF THE ORDER IN WPC No.7601/2004 OF HON'BLE
HIGH COURT OF KERALA.
EXT- P9- TRUE COPY OF THE ORDER No.GB1/22/03-04/317 OF THE
EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KSEB,
PACHALAM, ERNAKULAM DATED 14-05-2004.
EXT- P10- TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER
SHOWING THE MONTHLY CONSUMPTION DEMAND OF ENERGY AS
PER TOD METER.
EXT- P11- TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DATED 30-05-2004.
EXT- P12- TRUE COPY OF THE JUDGMENT DATED 10-08-2004 IN WPC
No.23397/2004 ON THE FILES OF THIS HON'BLE COURT.
EXT- P13- TRUE COPY OF THE REPRESENTATION DATED 09-09-2004
SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT- P14- TRUE COPY OF THE ORDER DATED 30-08-2005 NUMBERED AS
BO (FB) No.2536/2005.
RESPONDENTS' EXHIBITS
NIL
AMG
C.K. ABDUL REHIM, J.
-------------------------------------------------
W.P.(c) No. 30917 OF 2005-E
-------------------------------------------------
DATED THIS THE 19th DAY OF JUNE, 2014.
J U D G M E N T
The petitioner is a Hospital having a High Tension (HT) electric connection provided under the respondents. The contracted load (contract demand) in the said connection remained as 125 KVA till January 1998. On detection that the maximum demand had exceeded the contract demand, the petitioner was billed at 323 KVA, being 75% of the maximum demand of 431 KVA recorded, from February 1998 onwards. Exhibit P1 bill issued in this regard was paid by the petitioner, without any protest. However Exts.P2 & P3 representations were submitted before the 2nd respondent requesting to re-consider the billing based on the maximum demand detected. During the year 2002, exactly on 17-09-2002, the petitioner had executed agreement with the Board enhancing the contract demand to 431 KVA. Thereafter the petitioner approached the 2nd respondent requesting to recompute the billing with respect W.P.(c) No.30917/2005 -2- to the period from March 1998 onwards. In Ext.P9 proceedings issued by the 2nd respondent it was found that, the contention of the petitioner that the agreement was executed under compulsion cannot be accepted. It was made clear that, the Board has no objection in making reduction in contract load, if the petitioner applies for the same with due compliance of the procedure. However, the 2nd respondent found that the billing for the period from 3/98 till the date of execution of the agreement need to be revised, and ordered accordingly. But no steps were taken to re-compute the liability and to effect any refund. Therefore the petitioner again approached this court in W.P
(c) No.23397/2004. In Ext.P12 judgment this court directed the Secretary of the 1st respondent Board to place the matter for consideration of the Board and the Board was directed to take a decision regarding the correctness and propriety of Ext.P9 order. On the basis of direction contained in Ext.P12 judgment the petitioner submitted a detailed representation before the Board, as evidenced from Ext.P13. Considering the contentions, the matter was dealt W.P.(c) No.30917/2005 -3- with by the 1st respondent Board and Ext.P14 order was issued. The contention that the petitioner was forced to execute the agreement with the Board for a contract demand of 431 KVA was found to be against the facts. It was observed that the contract demand is fixed at the discretion of HT/EHT consumers and the bilateral agreement incorporating the terms and conditions of such discretion cannot be cancelled or withdrawn. However, it was observed that, the petitioner will be at liberty to increase or decrease the demand at any point of time in view of the terms of conditions of the agreement. With respect to bills issued to the petitioner for the period from 3/98 to 17-09-2002, the Board directed that it should be revised on the following terms:
"(i) (a) For the period from 3/98 to 9/99, during which the meter was faulty, billing demand and monthly consumption may be assessed based on average billing demand and consumption of 3 months succeeding the meter faulty period as per Clause 31
(c) of Conditions of Supply.
W.P.(c) No.30917/2005 -4-
(b) For the billing demand in excess of 125 KVA, 150% of demand charge is to be levied.
(ii) For the period from 10/99 to 16-09-2002, recorded Maximum Demand exceeding 125 KVA may be billed at 150% of demand charges.
(iii) In addition to the above, penalty for non-
installation of TOD meter is to be charged for the period from 01-07-1999 to 17-01-2000."
In this writ petition the petitioner is assailing those directions and also challenging Ext.P14 to the extent it does not specifically ordered refund of the excess payment.
2. Contention of the petitioner is mainly against the direction for the billing of the recorded maximum demand exceeding 125 KVA at 150% of the demand charges. He had also assailed the conditions insisting on imposition of penalty on the allegation of non-installing TOD Meter for the period from 01-07-1999 to 17-01-2000.
3. In a statement filed on behalf of respondents it is contended that, the consumption above the permitted contract demand is liable to be charged at 150% and the consumer cannot dispute the same. Direction for imposition W.P.(c) No.30917/2005 -5- of penalty for non-installation of TOD meter is also sustainable, is the contention. The petitioner is legally bound by the terms of the agreement, especially Clause 15 of HT agreement to pay 150% of the charges, if the contract demand is exceeded and there is no illegality in demanding payment in terms of the agreement, is the contention.
4. Learned counsel contended that, with respect to installation of TOD meter the petitioner had filed a writ petition before this court, challenging Notification as OP No.194/1998. All along there was a stay against implementation of the said Notification. The said writ petition was disposed of only on 28-03-2005. A copy of the judgment in OP No.194/1998 was placed for perusal. It indicates that the batch of writ petitions were disposed of through a common judgment granting freedom to the Board to decide whether TOD meter is required as of now under the present tariff order. If the consumer fails to install TOD meter the Board was given liberty to collect the amount and to install the meter. However it was made clear that the Board will be free to penalise for additional consumption W.P.(c) No.30917/2005 -6- during peak hours. The said judgment was pronounced only in the year 2005 and till such time the petitioner was continuing on the basis of interim stay order granted by this court. Hence the direction for imposition of penalty alleging non-installation of TOD meter for the period from 01-07- 1999 to 17-01-2000 is not justifiable, is the contention. Evidently the petitioner had installed the TOD meter during January 2000. Therefore the direction to impose penalty on that count is not justifiable in view of the fact that there existed interim orders against implementation of the Notification and that the writ petition was disposed of only in the year 2005. Apart from the above aspect, all other directions contained in Ext.P14 are found as legal and sustainable. However, the petitioner is entitled to get the bills revised accordingly. Excess payment if any found is liable to be refunded/adjusted. Hence this court is of the opinion that interest of justice will be achieved by issuing direction to take necessary steps within a time limit.
5. Therefore this writ petition is hereby disposed of by directing the respondents to implement Ext.P14 order, W.P.(c) No.30917/2005 -7- except in the case of the direction contained with respect to imposition of penalty on the allegation of non-installation of TOD meter for the period from 01-07-1999 to 17-01-2000. As directed in Ext.P14, bills for the period from 3/98 to 16- 09-2002 shall be revised in accordance with the terms of Ext.P14 order. A decision in this regard shall be taken by the 3rd respondent or any other competent authority. The revised bill in this regard shall be issued to the petitioner at the earliest possible, at any rate, within a period of 2 months from the date of receipt of a copy of this judgment. Excess payment if any found shall be refunded/adjusted within a period of 3 months from the date of issuance of such revised bill.
Sd/-
C.K. ABDUL REHIM JUDGE AMG True copy P.A. to Judge