KANAN DEVAN HILL PLANTATIONS Vs. KERALA STATE ELECTRICITY

JUDGEMENT

(1.) The Appellant who is a successor in interest of M/s. Tata Tea Ltd. and a Licensee under Section 14 of the Electricity Act, 2003 for the purpose of distribution of electricity in its licensed area, namely, Munnar in the State of Kerala preferred this Appeal against the order dated 25.5.2010 passed by the Kerala Electricity Regulatory Commission (KERC) Respondent No.1 whereby the tariff of the Appellant who, according to the Appellant, was consuming for itself less than 50% of the total energy purchased by it from the Kerala Sate Electricity Board (Board), Respondent No. 2, was passed with retrospective effect from 1.12.2007.

(2.) THE facts are these:

(3.) IN terms of Section 64(2) of the Act, the Commission issued abridged notification dated 7.9.2007 publishing the gist of the Tariff Revision Petition of the Board and calling for objections to the same. In the said notification, which is Annexure III to the Memo of Appeal, Sl. No. 4 is dealing with licensees with consumption more than 50% of the total purchase from Kerala State Electricity Board and there is no mention of those licensees, like the Appellant, whose self consumption is less than 50% of the total purchase from the Board. Thus, according to the Appellant, no change in the tariff was proposed in the case of the Appellant who is a 11KV licensee with self consumption at less than 50%. However, in the said notification, the existing tariff with respect to energy charges of 11 KV licensee was shown at 2.75 per unit which was the existing tariff of licensees with self consumption more than 50% (G -II) and this was sought to be increased to Rs.3/ - but the Commission sanctioned a tariff of Rs. 2.85 paise per unit with effect from 1.12.2007. At that point of time, existing tariff for energy charges of the Appellant was only Rs.2.15 and the proposed increase for the Appellant would have been 0.85 paise per unit and sanctioned increase 0.70 paise per unit. If the proposed increase was applicable to the Appellant, the additional revenue with respect to the Appellant would have been more than Rs. 3 crores and the percentage of increase in the case of the Appellant would have been more than 33% as against 8.32% increase proposed in the notification of 7.9.2007. In Form T -2 the Board made proposal with respect to only 11KV licensee with contracted demand at 12 KVA while the Appellant's contracted demand was at 7 KVA. Now, a public hearing was held but it was not necessary for the Appellant to attend the hearing in view of the notification having not covered the Appellant. Alarmingly, the Commission by order dated 26.11.2007 abolished the distinction between licensees owning self consumption at less than 50% and the licensees having self -consumption at more 50% in consequence of which, the order dated 26.11.2007 was made to cover the Appellant also although the Tariff Petition along with the notification dated 7.9.2007sought for increase of tariff for the licensees with self consumption of more than 50%. Necessarily, the Appellant filed a Review Petition challenging the order dated 26.11.2007 on 25.1.2008 which however was dismissed by order dated 15.2.2008. Then the Appellant filed a Writ Petition before the Hon'ble Kerala High Court being Petition No. ( C ) 4963/2008 and after hearing the parties, the High Court by Judgment and order dated 12.3.2008 allowed Writ Petition making a thorough interpretation of Section 64(3)(a) of the Act. The Commission preferred Writ Appeal before the Division Bench of The High Court being Writ Appeal No. 1158 of 2008 against the order of the Hon'ble Single Judge dated 12.3.2008 but the Division Bench of the High Court dismissed the Appeal of the Commission by judgment and order dated 5.6.2008. Still then, the Board was issuing bills in terms of the Commission's order dated 26.11.2007 which necessitated the Appellant again to file a Writ Petition being WP ( C ) 17365 of 2008 before the Hon'ble High Court and got the relief by order dated 9.7.2008.(Annexure IX) Now, as late as 16.10.2009, the Board filed a petition for revision of tariff before the Commission praying for inclusion of the Appellant in the tariff order dated 26.11.2007 which was made effective from 1.12.2007. The Commission on 11.11.2009 communicated to the Appellant of such filing of the Petition by the Board for revision of tariff in the case of the Appellant with effect from 1.12.2007. On 20.11.2009, the Appellant filed objections to the Board's Petition dated 16.10.2009. On 2.3.2010 the Board issued notification containing the tariff petition of the Board so as to include the Appellant. A copy of the notification was sent to the Appellant on 25.3.2010. On 20.4.2010, the Appellant filed additional objections and then followed the Commission's impugned order dated 25.5.2010 which is the subject matter of the present appeal.