Appeal No. 128 of 2012. Case: The Kerala High Tension and Extra High Tension Industrial Electricity Consumers' Association Vs Kerala State Electricity Regulatory Commission and Kerala State Electricity Board. APTEL (Appellate Tribunal for Electricity)
| Case Number | Appeal No. 128 of 2012 |
| Counsel | For Appellant: Mr. Joseph Kodianthara, Sr. Adv., Mr. M.P. Vinod, Ms. Neelam Saini and Ms. Usha Nandini and For Respondents: Mr. Ramesh Babu, Mr. Aneesh James for R-1, Mr M.T. Goerge & Ms. Kavitha for R-2 |
| Judges | M. Karpaga Vinayagam, J. (Chairperson) and Rakesh Nath, Member (T) |
| Issue | Electricity Act, 2003 - Sections 129, 130, 142, 146, 46 |
| Judgement Date | July 03, 2013 |
| Court | APTEL (Appellate Tribunal for Electricity) |
Judgment:
M. Karpaga Vinayagam, J. (Chairperson)
1. The Kerala High Tension and Extra High Tension Industrial Electricity Consumers' Association is the Appellant herein. The Appellant, aggrieved by the impugned order dated 30.4.2012 passed by the Kerala State Electricity Regulatory Commission ("State Commission") refusing to issue direction for the refund of Service Connection Charges which were unauthorisedly levied and collected by the Kerala State Electricity Board.
2. The short facts are as follows:-
3. The Appellant is an Association of Industries principally of High Tension and Extra High Tension Industrial consumers of electricity in the State of Kerala. The 1st Respondent is the State Commission. The 2nd Respondent is the Kerala State Electricity Board.
4. After coming into force of the Electricity Act 2003 and the Kerala Electricity Supply Code, 2005, dispute was raised by the Appellant Association through the petition dated 22.12.2009 filed before the State Commission with respect to the Service Connection Charges being illegally levied and collected from the members of the Appellant Association by the Kerala State Electricity Board. The State Commission, after hearing parties, passed order dated 8.9.2010 holding in favour of the Appellant to the effect that the collection of Service Connection Charges by the State Electricity Board from 2.3.2005 onwards, i.e. the date on which Supply Code came into force, was not legal and directing the Electricity State Board not to collect the Service Connection Charges from the consumers anymore i.e. from the date of the order namely 8.9.2010. In the said order, the State Commission observed that with regard to the question of refund of Service Connection Charges already collected after 2.3.2005 upto 7.9.2010, the matter would be taken up in separate proceedings.
5. Thereupon, the State Commission separately took up the issue of refund and heard the parties.
6. Ultimately the State Commission passed the impugned order dated 30.4.2012 holding that although the collection of Service Connection Charges after 2.3.2005 was not legal, the said charges collected from the HT/EHT consumers till 7.9.2010 need not be refunded as these amounts were already treated as revenue and the ARR/ERC of the Electricity Board was already approved.
7. Aggrieved by this order dated 30.4.2012, the Appellant has filed this Appeal.
8. The Learned Senior Counsel for the Appellant has urged the following grounds assailing the impugned order.
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The impugned order of the State Commission denying refund of Service Connection Charges levied on the HT/EHT consumers till 7.9.2010 is contrary to the categorical finding of the State Commission in its earlier order dated 8.9.2010 that the collection of Service Connection Charges from 2.3.2005 was not legal.
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The impugned order has resulted in the undue benefit to the State Electricity Board and the loss to the HT/EHT consumers who have been admittedly subjected to the illegal levy and therefore the denial of the refund of such illegally collected amount from them is not valid in law.
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Merely because the ARR/ERC of State Electricity Board had already been approved or the Service Connection Charges collected were already treated as revenue could not deny them the refund as it is unreasonable and illegal.
9. On these grounds, the Appellant has prayed for setting aside the impugned order dated 30.4.2012 and grant the consequential reliefs to the Appellant.
10. In reply to the above grounds, the Learned Counsel for the State Commission as well as the State Electricity Board elaborately explained the various circumstances under which the State Commission was constrained to pass the impugned order denying the refund to the Appellant. They also pointed out the serious consequences if the claim made by the Appellant before the State Commission is allowed in their favour.
11. In the light of the above rival contentions made by both the parties, the questions that may arise for our consideration in this Appeal are as follows:
(i) Having held in the order dated 8.9.2010 that the collection of Service Connection Charges from 2.3.2005 onwards by the Electricity Board was not justified, is it proper for the State Commission to deny the refund of Service Connection Charges which was found to be collected illegally?
(ii) Whether the reasonings contained in the impugned order for denying the refund to the Appellant consumers till 7.9.2010 are legal and sustainable?
12. Before dealing with these questions, it would be better to quote the analysis and finding given by the State Commission by the order dated 30.4.2012 on these issues. They are as follows:
3. Analysis
Service connection charge was introduced by the Board w.e.f. 1.10.1998 to enable the Board to recover a portion of the cost incurred by the Board in its back end system for giving its service connection. The Board had to invest huge amounts to strengthen its generation, transmission and distribution networks to meet the enhanced electricity demand. Hence a consumer when applying for power connection had to bear a part of the cost incurred by the Board for developing/increasing capacity of transmission and distribution system. After...
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