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2016 Supreme(Ker) 596
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANTONY DOMINIC, SHIRCY V., JJ.
KERALA STATE ELECTRICITY BOARD REPRESENTED BY THE SECRETARY, VYDHUTHI BHAVAN, PATTOM – APPELLANT
Vs.
THE KERALA HIGH TENSION & EXTRA HIGH TENSION INDUSTRIAL ELECTRICITY CONSUMER'S ASSOCIATION – RESPONDENT
W.A.No.649 of 2016 IN WP(C)1648 of 2015, W.A.No.1933 of 2016
Decided on : 31-10-2016
Advocate Appeared:
For the Appellant : SRI.RAJU JOSEPH (SR.), SRI.GEORGE KUTTY MATHEW
For the Respondents: SRI.ARSHAD HIDAYATHULLA(SR.)(NO MEMO), ADV. SRI.V.ABRAHAM MARKOS, ADV. SRI.ABRAHAM JOSEPH MARKOS, SRI.ISAAC THOMAS, SRI.HARAN THOMAS GEORGE, GOVERNMENT PLEADER SRI.P.N.SANTHOSH
The main legal point established in the judgment is that the benefit of a judgment cannot be claimed by consumers who were not parties to the judgment, and the court also discussed the legal principles related to delay, waiver, and acquiescence in claiming the benefit of a judgment.
Headnote:
Electricity Supply - Writ Petition - Ext.P2, Ext.P3, Ext.P4, Ext.P5, Ext.P6, Ext.P10 - The court discussed the maintainability of the writ petition filed by the association and the benefit of the judgment in S.V.A.Steel Re-Rolling Mills Limited and others v. State of Kerala and Others [(2014) 4 SCC 186]. The court held that the writ petition filed by the Association was not maintainable and the benefit of the judgment could not be claimed by consumers who were not parties to the judgment. The court also discussed the legal principles related to delay, waiver, and acquiescence in claiming the benefit of a judgment.
Fact of the Case:
The Kerala State Electricity Board and the State of Kerala challenged the judgment in W.P.(C)1648/15, which directed them to deal with the claims raised by the Association in Exts.P6 and P10 representations and based on individual claims made by its each member with supporting documents.
Finding of the Court:
The court found that the writ petition filed by the Association was not maintainable and the benefit of the judgment in S.V.A.Steel Re-Rolling Mills Limited and others v. State of Kerala and Others [(2014) 4 SCC 186] could not be claimed by consumers who were not parties to the judgment.
Issues: The main issue was the maintainability of the writ petition filed by the association and the claim for the benefit of the judgment in S.V.A.Steel Re-Rolling Mills Limited and others v. State of Kerala and Others [(2014) 4 SCC 186].
Ratio Decidendi: The court held that the writ petition filed by the Association was not maintainable and the benefit of the judgment could not be claimed by consumers who were not parties to the judgment. The court also discussed the legal principles related to delay, waiver, and acquiescence in claiming the benefit of a judgment.
Final Decision: The judgment of the learned Single Judge holding that the writ petition is maintainable was set aside and the appeals were allowed. No costs were awarded.
Antony Dominic, J.
These appeals are filed by the Kerala State Electricity Board and the State of Kerala and others, challenging the judgment in W.P.(C)1648/15. By the judgment under appeal, the learned Single Judge overruled the objection raised by the appellant in W.A.649/16 regarding the maintainability of the writ petition filed by the Kerala High Tension and Extra High Tension Industrial Electricity Consumers Association (hereinafter referred to as 'Association') and directed the appellants to deal with the claims raised by the Association in Exts.P6 and P10 representations and based on individual claims made by its each member with supporting documents.
2. By Ext.P2 order dated 21.5.90, the Government announced incentives to new industries in the matter of power connection. Ext.P2 was adopted by the Electricity Board, vide its order dated 19.6.1990. Subsequently, the Government issued Ext.P3 order dated 6.2.1992, whereby new industrial units which commenced commercial production between 1.1.92 to 31.12.96 and satisfied the other conditions specified, were offered uninterrupted power supply and exemption for five years from payment of enhanced power tariff, which came into effect on 1.1.92.
3. Various industries were set up in the State acting upon the representation contained in the aforesaid order of the Government of Kerala. Despite the aforesaid offer for uninterrupted power supply, power cut at rates varying from 30 to 100 percent was imposed on High Tension (HT) and Extra High Tension (EHT) consumers during the period from 7.1.96 to 15.12.97. According to the Board, during the said period there were restrictions on consumption of energy in excess of 50% for 325 days for Extra High Tension (EHT) consumers and 425 days for High Tension (HT) consumers. It appears that the respondent herein, an association representing the High Tension (HT) and Extra High Tension (EHT) industrial consumers made representations to the Government. In response thereto, the Government issued Ext.P4 order, dated 26.10.1999 granting extension of the period of supply of power at pre-92 tariff to the eligible industrial units which suffered power cut of 50% or more, for such period when power cut was in force. However, this benefit was not extended for the period when the power cut was less than 50%.
4. Writ petitions were filed by several High Tension (HT) and Extra High Tension (EHT) Consumers claiming that the benefit on par with Ext.P4 should be extended to them for the period when power cut at less than 50% was in force. These writ petitions were dismissed by a Division Bench of this court on 24.2.2005.
5. Some of the petitioners before this court carried the matter in appeal before the Apex Court. By its judgment dated 6.2.2014 in S.V.A.Steel Re-Rolling Mills Limited and others v. State of Kerala and Others [(2014) 4 SCC 186] the Supreme Court allowed the appeals and ordered thus:
"37. We, therefore, allow the appeals by quashing and setting aside the impugned order passed by the High Court and direct the respondents to calculate the period during which 100% electricity supply was not given to the appellants and extend the period of incentive accordingly. The calculation shall be made and consequential orders shall be passed within two months from today. The appeals are allowed with no order as to costs."
6. Realising that the Apex Court has allowed the appeals filed by some of the High Tension (HT) and Extra High Tension (EHT) Consumers, the respondent association submitted Ext.P6 representation to the Government of Kerala, referring to the judgment in extenso and requesting thus:
"In this view of the matter and considering the public interest involved, the Association hereby respectfully requests the Government to forthwith comply with the Order of the Honourable Supreme Court and come out with an appropriate Government Order extending the pre 92 benefit even for days when supply of electricity was more than 50% but not 100% as assure
