M/S.HAMSAVENI CARBIDES v. KERALA STATE ELECTRICITY BOARD

P.N.RAVINDRAN, J.-----------------------------------------W.P.(C).No.6134 of 2009-----------------------------------------Dated this the 30th day of November, 2012JUDGMENTThe petitioner, a partnership firm, has filed this writ petitionchallenging Ext.P14 letter dated 21.2.2009 issued by the DeputyChief Engineer, Electrical Circle, Palakkad, and Ext.P16 orderdated 19.2.2009 issued by the Kerala State Electricity Board(hereinafter referred to as the Board for short) and seeking adeclaration that the petitioner is entitled to get reconnection ofelectricity supply in the light of Ext.P3 Board order without payingany amount towards cost of works on the distribution side. Thepetitioner also seeks a direction to the third respondent DeputyChief Engineer to forthwith effect supply of electricity to thepetitioner's industrial unit without insisting on payment of theamounts demanded in Ext.P14. The brief facts of the case are asfollows:2. The petitioner firm had established a small scaleindustrial unit at Kanjikode in Palakkad district to manufactureCalcium Carbide. Electricity connection to the petitioner's W.P(C).No.6134 of 2009-:2:-industrial unit was given on 28.10.1994 from the 22 KV “GASHA”feeder drawn from the 220 KV sub-station at Kanjikode. Thecontract demand was 500 KVA. The petitioner's industrial unitstarted commercial production on 30.1.1995. A major break downoccurred in the petitioner's factory on 27.9.2001 and it was closedfor repair works. This fact was communicated to the AssistantExecutive Engineer, Electrical Major Section, Kanjikode, by Ext.P1letter dated 28.9.2001 sent by the Manager of the petitioner'sfactory. In that letter the Assistant Executive Engineer wasinformed that the plant was shut down at 12 A.M. on 27.9.2001due to a major break down, that the outer shell of the furnace hasbeen damaged and more than two or three months' time will betaken to repair the furnace. In that letter the Manager of thepetitioner's factory also requested the Assistant ExecutiveEngineer to record the reading in the maximum demand meter(MD meter) and energy meter and to re-set the maximumdemand meter to zero so as to enable the petitioner to claimproportionate rebate in the maximum demand charges. TheAssistant Executive Engineer was also informed that before theplant is re-started he will be informed. 3. Upon receipt of Ext.P1 letter, the Assistant Executive W.P(C).No.6134 of 2009-:3:-Engineer inspected the petitioner's industrial unit and recorded thereading of the MD meter on 28.9.2001 and re-set the MD meter tozero. He thereafter sent Ext.P2 letter dated 10.10.2001 to theExecutive Engineer, Electrical Division, Palakkad. The petitionerdid not re-start operations in its industrial unit for quite sometime. While matters stood thus, the State Government issued G.O.(Rt)No.35/2007/PD dated 24.2.2007 whereby, the Governmentwaived minimum demand charges of electricity for the periodduring which industrial units stood closed, in order to facilitateclosed industrial units to re-start operations. In that Governmentorder it was stipulated that waiver of minimum demand charges ofelectricity during the period of closure in respect of closedindustrial units will be available only if operations are re-startedon or before 31.12.2008. Later, the Government issued an orderdated 2.8.2008 extending the said benefit to industrial units whichre-start operations before 31.12.2008. 4. The Board, at its meeting held on 18.8.2008 decided toadopt the aforesaid Government order for implementation, subjectto certain conditions and thereafter issued Ext.P3 order dated30.8.2008. Inter alia, it was stipulated therein that the benefit ofthe Government order dated 2.8.2008 will be available to those W.P(C).No.6134 of 2009-:4:-consumers whose service connection was dismantled, if theyreopen on or before 31.12.2008. By that order the Board alsodecided to effect reconnection on remittance of 1/3rd of thearrears and interest and to allow a maximum of six instalments forpayment of the balance amount, subject to the condition that thearrear instalments and monthly electricity charges shall be paidpromptly. It was stipulated that in the event of failure, waiver ofminimum demand/fixed charges for the period of closure will bewithdrawn and the supply disconnected. Ext.P3 Board order dated30.8.2008, is extracted below in full:-KERALA STATE ELECTRICITY BOARDABSTRACTWaiver of minimum demand charges/fixed charges forelectricity in respect of all the closed LT/HT Industrialunits and plantations – Implementation of theGovernment Order – Sanctioned – Orders issued --------------------------------------------------------------CORPORATE OFFICE (COMMERCIAL CELL)B.O.(FB)No.2164/08 (Plg.Com 4576/Waiver of MD/08/) Dated, Thiruvananthapuram, 30.08.2008------------------------------------------------------------Read: - 1. B.O. (FB) No: 965/2007 (Plg.Com4576/07)/391 dated 21.04.2007.2. G.O. (Rt) No: 209/2008/PD dated 02.08.20083. Note No. Plg.Com. 4576/04/07-08/140 dated12.08.2008 of the Secretary, K.S.E.Board.4.Proceedings of the Board meeting dated18.08.2008 (Agenda item No. 222/08) W.P(C).No.6134 of 2009-:5:-O R D E RGovernment vide G.O. read 2nd paper hadordered waiver of minimum demand charges/fixedcharges for electricity for the period of closure inrespect of all closed HT/LT Plantations and Industrialunits which will be restarting their operation on orbefore 31.12.2008.I. The Board in its meeting held on 18.08.2008decided to accorded sanction to adopt the G.O. (Rt)No: 209/2008/PD dated 02.08.2008 forimplementation in the K.S.E.Board subject to thefollowing conditions.1) To extend the cut-off date for waiver of MDcharges in respect of closed industrialunits/plantations specified in the G.O. (Rt) No:35/07/PD dated 24.02.2007 for a furtherperiod upto 31.12.2008.2) To extend the benefit of waiver of fixedcharges in respect of LT industrial units andplantations, if they re-open on or before31.12.2008.3) The firm availing the benefit of waiver shallhave to function for a minimum period of 6months after re-opening, failing which thebenefit will be withdrawn.4) Government Order shall be applicable only tothe units reopening on or before 31.12.2008and subject to the condition that the packagefor repayment will be considered by the Boardby processing individual cases of plantations W.P(C).No.6134 of 2009-:6:-and industrial units (both HT and LT) onproduction of a certificate regarding closureand reopening obtained from the competentauthority.5) To extend the benefit of waiver of MD chargesto consumers whose service connection wasdismantled, if they re-open on or before31.12.2008.(emphasis supplied)6) To effect the reconnection on remittance of1/3rd of arrears and interest for instalmentand allowing a maximum of six instalments forthe balance amount subject to the conditionthat arrear instalments and monthly electricitycharges shall be paid promptly by theconsumer failing which, waiver of MD/fixedcharges for closed period will be withdrawnand supply disconnected.7) When there are more than one spell of closureintervened by a spell of operation, the lastspell of closure only shall be taken for grantingwaiver of minimum demand charges.II. Board also decided to request Government topay in advance or reimburse to K.S.E.Board, theamount of minimum demand charge/ fixed chargewaived on implementation of the G.O. dated02.08.2008.Orders are issued accordingly.By Order of the BoardSd/-M. Subair, W.P(C).No.6134 of 2009-:7:-Secretary.”5. It is relevant in this context to note that Ext.P3 Boardorder dated 30.8.2008 was being periodically renewed pursuant tothe Government orders issued in that regard and as per Boardorder dated 20.11.2012, the benefit of waiver of minimumdemand charges/fixed charges was made available to closedindustrial units which re-start operations on or before 31.12.2012.The Board order dated 20.11.2012, a copy of which was madeavailable to me by the learned counsel for the petitioner duringthe course of arguments is extracted below in full:-“KERALA STATE ELECTRICITY BOARDABSTRACT-------------------------------------------------------Waiver of fixed charges together with minimumdemand charges in respect of closed plantations andIndustrial units – Extension of validity of G.O (Rt)220/2011/PD dated 27.09.2011 and G.O (Rt) 244 /2011/ PD dated 17.10.2011 up to 31.12.2012 –Sanctioned – Orders issued -----------------------------------------------------------CORPORATE OFFICE (COMMERCIAL CELL)B.O.(FB)(Genl.)No2202/2012(CommlII/MDWaiver/2012-13) Dated, TVPM, .20.11.2012---------------------------------------------------------Read:-1. G.O. (Rt) No.64/06/PD dated, 21.02.2006. 2. G.O. (Rt) No.35/07/PD dated, 24.02.2007.3. G.O. (Rt) No.209/08/PD dated, 02.08.2008.4. B.O.(FB) No: 2164/08 (Plg.Com 4576/Waiver ofMD/08) dt. 30.08.08. W.P(C).No.6134 of 2009-:8:-5. G.O. (Rt) No.161/2009/PD dated 06.07.2009.6. B.O. (FB) No: 2081/09 (Plg.Com 4576/Waiver ofMD/08)/230 dated 11.08.2009.7. G.O. (Rt) No.216/2010/PD dated 13.09.2010.8. B.O. (FB) (Genl.) No: 2986/2010 (Plg.Com4576/MD Waiver/2010-11) dated 19.11.2010.9. G.O. (Rt) No.220/2011/PD dated 27.09.2011.10. G.O. (Rt) No.244/2011/PD dated 17.10.2011.11. B.O. (FB) (Genl.) No: 2713/2011 (Plg.Com4576/MD Waiver/2011-12)dated 19.11.2011.12. G.O. (Rt) No.136/2012/PD dated 16.07.2012.13. Note No. Comml-II/MD WAIVER/2012-13 dated17.10.2012 of the Secretary, K.S.E.Board. 14. Proceedings of the Board Meeting dated30.10.2012 (Agenda item No.110 / 2012.)O R D E RGovernment vide G.O. read as 1st paperabove had ordered waiver of minimum demandcharges for electricity for the period of closure inrespect of all closed Industrial units which will berestarting their operation on or before 31.03.2006. Government vide G.O. read as 2nd paperabove had ordered that the minimum demandcharges for electricity would be waived for theperiod of closure in respect of all closed plantationsand Industrial units restarting their operation on or W.P(C).No.6134 of 2009-:9:-before 30.06.2007. Government vide G.O. read as 3rd paperabove had ordered to extend the validity of the G.O.(Rt)No.35/07/PD dated, 24.02.2007 up to31.12.2008 and ordered to include fixed chargestogether with minimum demand charges in thewaiver and there by extended the benefits to the LTIndustrial units and plantations restarting theiroperations before 31.12.2008. Board vide order readas 4th paper above had adopted the G.O. (Rt)No.209/08/PD dated, 02.08.2008.Government vide order read as 5th paperabove had ordered to extend the validity of the G.O.(Rt)No.209/08/PD dated, 02.08.2008 upto31.03.2010. Board vide order read as 6th paperabove had adopted the G.O. (Rt) No.161/2009/PDdated 06.07.2009.Government vide G.O. read as 7th paperabove had ordered to extend the validity of G.O.(Rt)No.161/2009/PD dated 06.07.2009 up to30.06.2011. Board vide order read as 8th paperabove had adopted the G.O. (Rt) No.216/2010/PDdated 13.09.2010.Government vide G.O. read as paper (9) and(10) above had ordered to extend the validity ofG.O. (Rt) No.216/10/PD dated 13.09.2010 upto31.12.2011 and Board had adopted the GovernmentOrders dated 27.09.2011 and 17.10.2011 vide Orderread as 11th paper above.Government vide G.O. read as 12th paper W.P(C).No.6134 of 2009-:10:-above had ordered to extend the validity of G.O.(Rt) No.220/2011/PD dated 27.09.2011 and G.O.(Rt).No.244/2011/PD dated 17.10.2011 up to31.12.2012.Having examined the matter, the Board ispleased to adopt the G.O.(Rt)No.136/2012/PD dated16.07.2012 extending the validity of benefit ofMinimum Demand/fixed charge waiver during theperiod of closure for a further period up to31.12.2012 and to extend such benefits to unitswhere there was a change in ownership as well,subject to the following conditions.i. The Industrial units likely to avail thebenefits must have been functional for minimumthree years.ii. Cases which have been settled earlier shallnot be re-opened under this scheme.iii. The firm availing the benefit of waiver shallhave to function for a minimum period of 6 monthsafter re-opening, failing which the benefit will bewithdrawn.iv. Government Order shall be applicable onlyto the units reopening on or before 31.12.2012 andsubject to the condition that the package forrepayment will be considered by the Board byprocessing individual cases of HT plantations andindustrial units on production of a certificateregarding closure and reopening obtained from thecompetent authority, viz., General Manager, DistrictIndustries Centre. In the case of LT plantations/ W.P(C).No.6134 of 2009-:11:-industrial units, the Deputy Chief Engineer of theconcerned Electrical Circles shall be authorized tosanction the waiver of fixed charges after verifyingthe genuineness of the application on production ofthe certificate from competent authority, viz.,General Manager, District Industries Centre. TheDeputy Chief Engineer shall intimate the details ofthe consumer and the financial liability, to the ChiefEngineer (Commercial & Tariff) for taking up thematter with Government for reimbursement.v. The benefit of waiver of MD charges shallbe extended to consumers whose service connectionwas dismantled, if they re-open on or before31.12.2012.(emphasis supplied)vi. The reconnection shall be effected onremittance of 1/3rd of the total arrears includinginterest as first instalment and allowing a maximumof six equal instalments for the balance amountsubject to the condition that arrear instalments andmonthly electricity charges shall be paid promptlyby the consumer failing which, waiver of MD/fixedcharges for closed period will be withdrawn andsupply disconnected.vii. The waiver of MD charges for differentspells of closure shall be granted only for thoseindustrial units which were closed either due tolabour disputes or non availability of raw materials.viii. In the event of industrial units requestingwaiver of MD/fixed charges or reasons other thanlabour disputes or non availability of raw materials, W.P(C).No.6134 of 2009-:12:-the last spell of closure alone shall be considered togrant the benefit of waiver of MD/fixed charges. Board also orders to request the Governmentto pay in advance or reimburse to K.S.E. Board, theamount of Minimum Demand charges/fixed chargesto be waived on account of implementation of theG.O. dated 16.07.2012.By Order of the BoardSd/-S. Roopakala Jagath.Secretary”6. After Ext.P3 Board order was issued, the petitionersubmitted Ext.P4 representation dated 29.11.2008 to the secondrespondent informing the second respondent that the petitionerhas taken efforts to re-start the industrial unit and offered to pay1/3rd of the arrears due as on 28.9.2001 and the balance in sixinstalments in terms of the Board order. After the petitioner'sindustrial unit was closed, the land allotted to it (1.72 acres inSy.No.472 of Pudussery Central Village, New IndustrialDevelopment Area, Kanjikode) as per proceedings dated 4.3.1994of the General Manager, District Industries Centre, Palakkad, wasresumed by proceedings dated 20.11.2008, which was issued aweek prior to the submission of Ext.P4 representation. Thepetitioner firm thereupon submitted a representation to theGeneral Manager, District Industries Centre, Palakkad informing W.P(C).No.6134 of 2009-:13:-him that the petitioner has taken earnest and effective steps tore-start the unit by availing the concession extended by theBoard. The General Manager, District Industries Centre, Palakkad,thereupon sent Ext.P5 letter dated 2.1.2009 to the Director ofIndustries and Commerce, Trivandrum, with a request to considerthe petitioner's request favourably. It is not in dispute thatpursuant to the said letter, the Director of Industries andCommerce cancelled the resumption order and thereupon byAnnexure 7 order dated 8.1.2009, which is produced along withthe additional statement dated 3.4.2009 filed by the learnedstanding counsel appearing for the Board, the General Manager,District Industries Centre, Palakkad cancelled the order ofresumption passed by him on 20.11.2008 and directed theManaging Partner of the petitioner firm to re-start the unit.7. When Ext.P4 representation submitted by the petitionerfor the benefits flowing from Ext.P3 Board order was notconsidered in time, the petitioner filed W.P.(C).No.36490 of 2008in this Court. When the said writ petition came up forconsideration on 9.1.2009, the learned standing counselappearing for the Board submitted that a decision will be taken onExt.P4 [marked as Ext.P12 in W.P.(C).No.36490 of 2008] within W.P(C).No.6134 of 2009-:14:-one week. W.P.(C).No.36490 of 2008 was thereupon closed byExt.P6 judgment delivered on 9.1.2009, recording the saidsubmission. It appears the petitioner's request for the benefitsflowing from Ext.P3 Board order was placed before theGovernment for consideration along with the representationssubmitted by other industrialists and ultimately all the said claimswere considered at a meeting held on 24.1.2009 in the Chambersof the Principal Secretary to Government of Kerala, (Industries &Commerce). The Secretary (Power), the Chairman of the Board,the Chief Engineer (Commercial & Tariff), the Special Officer(Revenue), two other officers of the Board and the representativesof various industrial units including the Managing Partner of thepetitioner firm attended the said meeting as can be seen fromExt.P8 minutes produced along with the writ petition. Ext.P8discloses that at that meeting, a decision was taken to request theChairman of the Board to accept arrears of energy charges(principal amount) and to give power connection to thepetitioner's industrial unit. The Chairman was also requested toconsider the petitioner's request for waiver of minimum demandcharges separately, provided production is resumed by 15.2.2009.The relevant portion of Ext.P8 minutes reads as follows:- W.P(C).No.6134 of 2009-:15:-Hamsaveni Carbides (File No.35123/J3/08/ID) : Chairman is requested to acceptthe principal amount alone and give powerconnection to the unit. He may also consider therequest of waiver of MD charges etc. separatelyprovided the company resumes production by15th February 2009.”8. Pursuant to the said decision, the petitioner took steps torestart production and also sought the statutory sanction of theElectrical Inspector as required under rule 63 of the IndianElectricity Rules, 1963. After inspection, the Electrical Inspector,Palakkad granted sanction for re-energization as per Ext.P9 orderdated 4.2.2009. The petitioner had in the meanwhile remitted thesum of Rs.20,77,353/- on 24.1.2009 and the sum ofRs.5,67,750/- on 2.2.2009, aggregating to Rs.26,45,103/-towards arrears of energy charges. The petitioner's request forthe benefits flowing from Ext.P3 Board order in terms of Ext.P8decision was considered by the full time members of the Board attheir meeting held on 3.2.2009. The Note submitted by theSpecial Officer (Revenue) to the full time members of the Boardthat met on 3.2.2009 is on record as Ext.P10. In Ext.P10 it isstated that as on 3.2.2009, the principal amount due from thepetitioner towards arrears of energy charges is Rs.26,45,103/- W.P(C).No.6134 of 2009-:16:-and in addition to it, the petitioner is liable to pay the sum ofRs.2,34,522/- by way of short remittance of electricity duty. Inview of the fact that the petitioner had by 2.2.2009 remitted thesum of Rs.26,45,103/- comprising of Rs.20,77,353/- remitted on24.1.2009 and Rs.5,67,750/- remitted on 2.2.2009, the full timemembers of the Board decided to effect reconnection of supply, ifthe petitioner pays the amount representing electricity duty, ie.Rs.2,34,522/-. The decision of the full time members of theBoard was communicated to the petitioner by the Special Officer(Revenue) as per Ext.P11 letter dated 3.2.2009. The petitionerremitted the sum of Rs.2,34,522/- and thereafter sent Ext.P12letter dated 4.2.2009 to the Special Officer (Revenue) requestingfor immediate action to effect reconnection. The Special Officer(Revenue) in turn sent Ext.P13 fax message dated 4.2.2009 tothe Deputy Chief Engineer, Electrical Circle, Palakkad, informinghim that the petitioner has complied with the direction of theBoard and requested the Deputy Chief Engineer to do the needfulfor effecting reconnection as per rules. In that letter, the SpecialOfficer (Revenue) also stated that as per the records maintainedin his office, the consumer (the petitioner) has to its credit anamount of Rs.4,25,816/- towards security deposit. The Deputy W.P(C).No.6134 of 2009-:17:-Chief Engineer, Electrical Circle, Palakkad, thereupon sent Ext.P14letter dated 21.2.2009 calling upon the petitioner to remit thesum of Rs.13,50,493/- towards the cost of works on thedistribution side for effecting supply. In that letter it was alsostated that cost of works in the transmission side should beremitted at the Transmission Circle, Kanjikode as per thedirections of the Deputy Chief Engineer, Transmission Circle,Kanjikode and reported for further action from his side. Thepetitioner was also called upon to submit a high tension (HT)service connection application in the prescribed form at ElectricalSection, Kanjikode along with the connected papers. The instantwrit petition was thereupon filed challenging Ext.P14. In Ext.P14,the Deputy Chief Engineer, Electrical Circle, Palakkad had referredto a Board order dated 19.2.2009. A copy thereof was producedby the learned standing counsel for the Board as Annexure R1(a)along with the statement dated 2.3.2009. The writ petition wasthereupon amended, incorporating a challenge to Annexure R1(a), a copy of which is produced and marked as Ext.P16.9. The principal contention raised in the writ petition is thatin view of Ext.P3 Board order and the decision evidenced byExt.P8 minutes, the Board is not justified in calling upon the W.P(C).No.6134 of 2009-:18:-petitioner to pay the amounts demanded in Exts.P14 and P16. Itis contended that on the terms of Ext.P3 Board order, Ext.P8minutes and Ext.P11 letter, the petitioner was bound to pay onlythe principal amount representing arrears of energy charges andduty arrears and therefore, no other condition could have beenimposed for restoring electricity supply. It is contended that inview of Ext.P3 Board order and the decision evidenced by Ext.P8minutes, the Board is estopped from demanding any otheramount from the petitioner for the purpose of restoring supply ofpower to the petitioner's industrial unit.10. The learned standing counsel appearing for the Boardhas filed four separate statements. In the first of the statementsdated 2.3.2009, it is stated that though initially the petitioner'sunit was being supplied power from the 22KV “GASHA” feederdrawn from the 220 KV sub-station at Kanjikode, after the supplyto the petitioner's industrial unit was disconnected on 11.10.2002and the connection was dismantled on 30.5.2003, the petitionerceased to be a consumer of the Board, that thereafter the Boardtook back the 500 KVA kept reserved for the petitioner and issuedallocation to other applicants who were awaiting supply of powerand they were given supply from the very same feeder, but in the W.P(C).No.6134 of 2009-:19:-light of Ext.P8 minutes, the Board decided to consider the requestof the petitioner for reconnection of HT supply as a special caseby overlooking the priority of other applicants for allocation ofpower subject to feasibility, after collecting the cost ofconstruction of a new 22 KV feeder at the distribution andtransmission wings. It is stated that towards the cost of drawinga new feeder on the distribution side, the petitioner has to remitthe sum of Rs.13,50,493/-, that towards the cost of installing acircuit breaker and a feeder bay inside the sub-station for feedingpower to the feeder, the petitioner has to remit the sum ofRs.14,00,000/- and towards enhancement of the capacity of thesub-station the petitioner has to remit the sum of Rs.11,00,000/-and a further sum of Rs.20,00,000/- by way of additional cashdeposit. It is also stated that presently 8 HT consumers are givensupply from the 22 KV “GASHA” feeder and their total demand is6596 KVA, that 8 distribution transformers of the Board are alsoconnected to this feeder for feeding power to small scaleindustrial units, that their total power requirement is 1130 KVA,that a total load of 7726 KVA is connected to the feeder, that theload current in the feeder as recorded in the substation is 200Amps., that the conductors of the feeder have a capacity to safely W.P(C).No.6134 of 2009-:20:-carry 197 Amps. only, that the feeder is overloaded and if supplyis given to the petitioner's unit also from the same feeder withoutany modification, it will result in an increase of the power load byanother 13.12 Amps. It is stated that the power conductors willnot be able to bear the additional load and if power supply isgiven, the feeder will overheat, break and collapse. Relying onAnnexure R1(e) Board order dated 24.5.2003, it is contendedthat once a service is dismantled, electricity connection to theparticular consumer can be given only as a new connectionfollowing all the formalities therefor and also on realizing theamount due to the Board from the consumer. It is alsocontended that as the petitioner is a consumer whose supply hasbeen dismantled, the formalities have to be adhered to, that thevalidity of the HT agreement between the petitioner and theBoard expired on the day the service connection to thepetitioner's industrial unit was dismantled and therefore, thepetitioner has to execute a fresh agreement for availing powerconnection besides depositing the amounts demanded in theimpugned letter/order.11. The petitioner has filed a reply affidavit dated 5.2.2009reiterating the contentions raised in the writ petition. With W.P(C).No.6134 of 2009-:21:-reference to the averment that if supply is given from the same22 KV “GASHA” feeder, the feeder will be overloaded and it willresult in a break down of the system, the petitioner hascontended in paragraph 6 of the reply affidavit that the case setout in that regard is an exaggeration and if the case set out hadbeen true, the Board would not have given connection to a nearbytile factory (Flora Tiles) with a connected load of 100 KVA. Thepetitioner has also stated that the said tile factory is situateadjacent to the petitioner's unit and that connection to the saidfactory is given from the same feeder which was drawn by thepetitioner in the year 1994, by spending more thanRs.20,00,000/-. As regards the contention of the Board that theelectricity connection to the petitioner's industrial unit can betreated only as a new connection, as the existing connection wasdismantled, it is contended that on the terms of Ext.P3, especiallyclause 5 thereof, the petitioner is entitled to waiver of theminimum demand charges and therefore, the Board is notjustified in taking the stand that in the case of a consumer whosesupply was dismantled, the consumer will have to observe all theformalities for a new connection. 12. The learned standing counsel for the Board has filed an W.P(C).No.6134 of 2009-:22:-additional statement dated 10.3.2009 reiterating the stand that asthe “GASHA” feeder is over loaded, a parallel feeder is proposedand the petitioner is bound to meet the expenses of a new feederin terms of paragraph 4(1) of the Kerala State Electricity BoardTerms and Conditions of Supply, 2005. The learned standingcounsel appearing for the Board has filed an additional statementdated 19.3.2009 contending that Ext.P16 Board order was issuedon account of the ban on giving power connection to powerintensive units in view of the precarious power availability and thatthe priority of 23 applicants who have applied for high tensionconnection from Electrical Section, Kanjikkode will have to be overlooked to give connection to the petitioner. The learned standingcounsel for the Board has filed an additional statement dated3.4.2009 and an additional statement dated 12.7.2011. In theadditional statement dated 12.7.2011 in paragraph 5 it is statedas follows: The petitioner's connection was dismantled on30.5.2003. Subsequent to this, two other high tensionconsumers have been energized on the same feeder line,that supplied power to the petitioner prior to it'sdismantling. M/s Scotfree Steels was given connection on21.11.2003 for a contract demand of 996 KVA. Thereafter,another consumer by the name Premier Alloys was given W.P(C).No.6134 of 2009-:23:-HT Connection on 7.10.2005 for a contract demand of1800 KVA from the same feeder line. Similarly, newconnections have been given on other feeders alsooriginating from the 220 KV Kanjikode Sub Station. Just asthe 22 KV gasha feeder was incapacitated to carry anyadditional load over and above the existing capacity, the220 KV Kanjikode Sub Station also got loaded to brim andhence incapacitated to cater for any additional loads. Thecapacity at the 220 KV Kanjikode Sub Station at 22 KVlevel is 75 MVA (75,000 KVA). The safe limit fixed forcontinuous supply of electricity is 80% of the installedcapacity which works out to 60,000 KVA. At present, thecontinuous load supplied through the 220 KV KanjikodeSub Station at 22 KV level is 67,500 KVA, which is 90% ofthe installed capacity. This is dangerously high as far asthe 220 KV Kanjikode Sub Station is concerned. Hence,applications for power dating back to the year 2005 fromthis Sub Station are being put on hold. In order to tacklethis precarious situation, an additional 50 MVAtransformer, to capacitate the additional load, is beinginstalled in this sub station and the same will becommissioned shortly, in order to meet the additionalpower requirements of the existing High TensionConsumers in the industrial area and new applicants whohave applied for power since 2005. Since, the aforesaidenhancement work is specifically intended for the aforesaidunits, and the general public is not being benefited by thiswork, the expenses to be incurred for this work cannot bemet from the own fund of K.S.E.B. Hence, power isprovided on the basis of a pro-rata contributions collected W.P(C).No.6134 of 2009-:24:-from such intending consumers. 13. In paragraph 9 of the additional statement dated12.7.2011 it is stated that initially at the time of providing powerconnection to the petitioner's industrial unit, the 22 KV feeder tothe petitioner's unit was extended from the existing feeder thatwas used to provide power to M/s. Malampuzha Cements, anotherhigh tension consumer. It is also stated that the distance fromM/s.Malampuzha Cements to the petitioner's premises is 200metres. In paragraph 12 of the statement dated 12.7.2011, it isstated that in Ext.P13 due to an over sight it was incorrectlystated that security deposit of Rs.4,25,816/-is available with theBoard to the credit of the petitioner. In the statement dated12.7.2011, it is also stated that there was downward revision inthe estimate prepared for the cost of drawing the 22 KV line andthe amount to be remitted by the petitioner has been revised asshown below:(i)Cost in the distribution side towards drawing thenew 22 KV feeder (Power line)Rs.7,07,562/-(ii)Cost in the transmission wing towards installing acircuit breaker and a feeder bay inside thesubstation for feeding power to the feederRs.14,00,000/-(iii)Costs in the transmission wing towards proratacontribution towards enhancement of substationRs.11,00,000/-(iv)Addl. Cash Deposit to be paid over and above Rs.16lakhs already paid by the petitioner as per order inW.A.No.925/2009Rs.4,25,816/- W.P(C).No.6134 of 2009-:25:-TotalRs.36,33,378/-14. A counter affidavit dated 18.7.2011 has been filed onbehalf of respondents 1 to 3 wherein the Board has attempted toexplain the circumstances in which the Kerala State ElectricityRegulatory Commission dismissed the application filed by theBoard for levying and collecting transmission side developmentcharges on per KVA basis from prospective LT/HT/EHT consumers.The Board has on 23.11.2012 filed I.A.No.15998 of 2012 andproduced along with it as Ext.R1(d), an order dated 23.5.2011issued by the Kerala State Electricity Regulatory Commissionwhereby it approved the standard estimate rates for the worksabove 11 KV level prepared by the Board with modifications andalso permitted the Board to collect the expenses in that regardfrom prospective consumers. It is contended that where worksinvolve construction of electric plants and lines above 11 KV level,the Board is entitled to collect the expenses incurred by it forconstruction of sub-stations, transmission lines or up-gradation oftransmission lines or sub-stations from the prospective consumerso as to cater to the larger capacity load requirement of thatconsumer.15. When this writ petition came up for hearing on W.P(C).No.6134 of 2009-:26:-3.4.2009, after hearing the learned counsel appearing for thepetitioner and the learned standing counsel appearing for theKerala State Electricity Board, the learned single Judge passed aninterim order to the effect that upon the petitioner remitting thesum of Rs.36,00,493/- and executing agreements, connection willbe given within a period of two months from the date on whichthe sum of Rs.36,00,493/- is remitted and the agreements areexecuted. It was also stipulated that such payment will be purelyprovisional and subject to the result of the writ petition and if thepetitioner succeeds, the amounts remitted will have to berefunded to the petitioner. The operative portion of the interimorder dated 3.4.2009 reads as follows:Upon the petitioner remitting Rs.36,00,493/- and executingAgreements, connection will be given to the petitioner asearly as possible and, at any rate, within a period of twomonths from the date on which the payment ofRs.36,00,493/- is made and the Agreements are executed.This is subject to the further condition that the petitionerwill commence payment of the instalments with theappropriate rate of interest. The first instalment shall bepaid within a peiod of one month from the date of paymentof Rs.36,00,493/-. It is made crystal clear that thepayments which are to be made by the petitioner in termsof this order will be purely provisional and it will be subjectto the result of the writ petition and if the petitioner W.P(C).No.6134 of 2009-:27:-succeeds, the amounts will have to be refunded to thepetitioner.16. The petitioner carried the matter in appeal by filingW.A.No.925 of 2009. A Division Bench of this Court disposed ofthe said writ appeal after hearing learned counsel on both sides byjudgment delivered on 8.4.2009, with the direction that in casethe petitioner deposits a further amount of Rs.16,00,000/- withintwo weeks, power supply shall be restored within a period of twoweeks thereafter. In other words the Division Bench directed thatif the petitioner remits the sum of Rs.16,00,000/- in addition tothe sum of Rs.26,45,103/- remitted in January 2009 and the sumof Rs.2,34,522/- remitted in February, 2009, the Board shall giveelectricity supply to the petitioner's industrial unit within twoweeks. Paragraph 4 of the judgment dated 8.4.2009 in W.ANo.925 of 2009 is extracted below:“Whether or not the petitioner is liable ultimately topay this amount of Rs.36 lakhs need not be considered atthis stage since we are only considering as to whether as acondition for reconnection any further amount is requiredto be deposited by the petitioner as a provisionalarrangement and if so how much amount he has to remit.In this regard, we have already pointed out that nomention is made in Exts.P11 and P13 about the furtheramount of contribution he has to make, as contained in W.P(C).No.6134 of 2009-:28:-Ext.P14 order - the security deposit of Rs.20 lakhs. Be thatit may, if the appellant is statutorily liable to pay suchamount, we cannot say that he is not liable to pay thisamount at all. However, these matters are yet to beconsidered by this Court. Admittedly, some amount is lyingwith the respondent Board as balance towards securitydeposit. Therefore, the deficit to make the amount of Rs.20lakhs will roughly come to Rs.16 lakhs. Though theappellant disputes his liability to pay this amount until afinal decision is taken, we cannot accept the saidcontention at this stage. Therefore, there will be a directionthat in case the petitioner deposits a further amount ofRs.16 lakhs (Sixteen lakhs) within two weeks, therespondent shall restore supply by reconnection within aperiod of two weeks thereafter. The amount as directedabove will be provisional and subject to the contentionsthat are available to be raised by eitehr side. This is only inpartial modification of the order made by the learned SingleJudge and the appellant is also liable to makeinstalments/payments as directed in the order with whichwe are not interfering”.17. Respondents 1 to 3 and 6 in the W.A No.925 of 2009thereupon filed R.P.No.432 of 2009. In the review petition theBoard raised two principal contentions. The first contention raisedwas that the Board is entitled to collect in advance the cost andexpenses for a fresh connection from the petitioner and therefore,the said amount has to be paid in advance. The second contention W.P(C).No.6134 of 2009-:29:-raised was that the time limit stipulated for giving supply afterremittance of the sum of Rs.16,00,000/- is grossly inadequatehaving regard to the fact that the line has to be drawn for morethan one kilometre. After hearing the learned counsel on bothsides the Division Bench of this Court disposed of R.P.No.432 of2009 by order passed on 9.6.2009 by clarifying that the balanceamount of Rs.42,00,000/- should paid in 60 equal monthlyinstalments and with a direction to the petitioner to start remittingthe instalments within one month from the date on whichconnection is given. Having regard to the fact that the petitionerhad remitted the sum of Rs.16,00,000/- on 28.4.2009 pursuant tothe direction issued by the Division Bench on 8.4.2009, theDivision Bench also granted three days further time to the Boardto give supply and directed that supply shall be given on or before30.6.2009. Thereafter, a fresh high tension agreement wasentered into between the petitioner and the Board on 25.6.2009and electricity connection was given to the petitioner's industrialunit on 26.6.2009. It is not in dispute that the petitioner isremitting every month, the sum of Rs.70,000/- pursuant to thedirection issued by the Division Bench on 9.6.2009 in R.P.No.432of 2009 in W.A.No.925 of 2009 and as on today, 41 such monthly W.P(C).No.6134 of 2009-:30:-instalments have thus been remitted by the petitioner.18. I heard Sri.Raju Joseph, learned Senior Advocateappearing for the petitioner, Sri.P.Santhalingam, learned SeniorAdvocate appearing for the Kerala State Electricity Board andSri.Reji Joseph, learned Government Pleader appearing forrespondents 4 and 5. Sri.Raju Joseph, learned Senior Counselappearing for the petitioner contended that having regard to thebackground in which Ext.P3 Board order was issued and the termsand stipulations therein, especially paragraphs 5 and 6 thereof,the Board is not justified in demanding and collecting transmissionside and distribution side development charges as set out inExts.P14 and P16. The learned Senior Counsel contended withparticular reference to paragraph 5 of Ext.P3 Board order thatwaiver of minimum demand charges is available to consumerswhose service connection has been dismantled, that suchconsumers need only pay 1/3rd of the arrears of energy chargesand interest as the first instalment for obtaining reconnection andtherefore, the Board cannot contend that a consumer whoseconnection has been dismantled should pay transmissionside/distribution side development charges. The learned SeniorCounsel contended that if that had been intention of the W.P(C).No.6134 of 2009-:31:-Government when it issued the order dated 2.8.2008 or the Boardwhen it issued Ext.P3 order it would have been specifically statedtherein, and therefore, for that reason also, the Board cannot addto the stipulations in Ext.P3 and insist on payment of chargesother than those mentioned therein. The learned Senior Counselcontended that even the stipulation regarding remittance of 1/3rdof the arrears and interest as the first instalment was dispensedwith in the case of the petitioner when the decision evidenced byExt.P8 was taken, at a meeting attended by the Power Secretary,the Chairman of the Board and the Chief Engineer, that pursuantto the said decision, the full time members of the Board that meton 3.2.1999 decided to effect reconnection of supply havingregard to the remittance by the petitioner of the principal amountrepresenting the arrears of energy charges, on the petitionerremitting the sum of Rs.2,34,522/- towards arrears of electricityduty, that the said amount was also remitted and therefore, theBoard cannot thereafter call upon the petitioner to paytransmission side/distribution side development charges asdemanded in Exts.P14 and P16. The learned Senior Counselcontended referring to paragraph 1 of the statement dated12.7.2011 filed on behalf of respondents 1 to 3 that the cost of W.P(C).No.6134 of 2009-:32:-drawing a new 22 KV feeder to supply power to the petitioner'sindustrial unit has come down to Rs.7,07,562/- from the demandfor Rs.13,50,493/- made in the statement dated 2.3.2009 and inExt.P14 and that the petitioner is not liable to pay the said sumor the sum of Rs.25,00,000/- towards transmission sidedevelopment charges as demanded in the statements filed by thelearned standing counsel for the Board. The learned SeniorCounsel contended that as Ext.P3 Board order and theGovernment order dated 2.8.2008 do not stipulate that theconsumer seeking reconnection should bear the expenses on thedistribution side and the transmission side, the Board cannotlegitimately demand payment of distribution side and transmissionside development charges. The learned Senior Counsel for thepetitioner however very fairly conceded that the petitioner has noobjection to deposit the sum of Rs.16,00,000/- as cash deposit,having regard to the fact that such cash deposit will earn interestwhich is periodically set off against energy charges. The learnedSenior Counsel for the petitioner, also submitted that the sum ofRs.16,00,000/- was remitted on 28.4.2009 pursuant to theinterim order passed by the learned single Judge on 3.4.2009 andthat the only greivance that the petitioner now has as regards the W.P(C).No.6134 of 2009-:33:-cash deposit, is about the non-availability of the sum ofRs.4,25,816/- mentioned in Ext.P13 letter sent by the SpecialOfficer (Revenue). 19. Relying on the decision of the Apex Court in MahabirVegetable Oils (P) Ltd. and Another v. State of Haryana andOthers (2006 (3) SCC 620), the learned Senior Counsel for thepetitioner contended that the Board is estopped from adding to oraltering the terms of Ext.P3 and insisting on payment of furtheramounts to effect reconnection, that the policy of the Governmentreflected in the Government order dated 2.8.2010 is even now inforce and that the Board was periodically issuing orders enablingindustrial consumers to restart operations by giving them waiverof minimum demand charges/fixed charges and that even in thelatest of the orders issued by the Board, viz. the order dated20.11.2012, all that is stipulated is that reconnection will beeffected on remittance of 1/3rd of the total arrears includinginterest as the first instalment (allowing a maximum of sixinstalments for payment of the balance) and that even in the saidorder which was issued after the instant writ petition was filed, theBoard has not stipulated that the consumer seeking the benefit ofthe said Board order should, if the supply has been dismantled, W.P(C).No.6134 of 2009-:34:-meet the expenses on the distribution side/transmission side foreffecting restoration of supply. The learned Senior Counsel for thepetitioner contended that even in the latest Board order, theBoard has not stipulated that the beneficiaries thereunder will betreated as new consumers and that only a new consumer in thereal sense of the term can be called upon to meet thedevelopment charges on distribution side and if permissible inlaw, the transmission side development charges. 20. Per contra, Sri.P.Santhalingam, learned Senior Counselappearing for the Board contended with particular reference to theload bearing capacity of the 22 KV “GASHA” feeder that the feedercannot support any further load, that it is already over loaded,that after the supply to the petitioner's unit was disconnected anddismantled, supply from the very same feeder was given to otherconsumers and therefore, it is necessary to draw another feederto give electricity supply to the petitioner. The learned SeniorCounsel contended that as per the provisions contained in theKerala Electricity Supply Code, 2005 and the Kerala StateElectricity Board Terms and Conditions of Supply, 2005, the Boardis entitled to levy and collect development charges on thedistribution side where extension of the distribution main is W.P(C).No.6134 of 2009-:35:-required. Relying on Ext.R1(d) order dated 23.5.2011 issued bythe Kerala State Electricity Regulatory Commission, the learnedSenior Advocate appearing for the Board contended that theRegulatory commission has permitted the Board to levytransmission side development charges from prospectiveconsumers where works involving the construction of electricplants and lines above 11 KV level are required and therefore, noexception can be taken to the demand in Ext.P14 letter andExt.P16 Board order. The learned Senior Advocate contended thatas the supply to the petitioner's industrial unit was disconnectedon 11.10.2002 and it was dismantled on 30.5.2003 and a newhigh tension agreement was executed on 25.6.2009, for allpractical purposes, the petitioner can be treated only as a newconsumer who is bound to pay the expenses on the distributionside and also on the transmission side, having regard to theprovisions contained in Regulation 8 of the Kerala ElectricitySupply Code, 2005 and Ext.R1(d) order dated 23.5.2011 issuedby the Kerala State Electricity Regulatory Commission andtherefore for that reason also, no interference is called for withthe impugned orders. The learned Senior Advocate contended thatrestoration of power supply to the petitioner's industrial unit could W.P(C).No.6134 of 2009-:36:-have been given only by overlooking the priority of otherapplicants and therefore, as it involved additional works on thetransmission side and distribution side, the levy of expenses inthat regard cannot be objected to, having regard to thestipulations contained in regulation 8 of the Kerala ElectricitySupply Code, 2005 and Ext.R1(d) order dated 23.5.2011 issuedby the Kerala State Electricity Regulatory Commission.21. I have considered the submissions made at the Bar bylearned counsel appearing on either side. I have also gonethrough the pleadings and the materials on record. The benefit ofwaiver of minimum demand charges was first extended to closedindustrial units by G.O(Rt.)No.64/2006/PD dated 21.2.2006. It isstipulated therein that the benefit of waiver of minimum demandcharges will be available to closed industrial units which restartoperations on or before 31.3.2006. Later, the Government issuedG.O(Rt) No.35/2007/PD. dated 24.2.2007 waiving fixed chargesalso along with minimum demand charges for electricity in respectof closed industrial units or plantations which restart operations onor before 30.6.2007. These orders were implemented by theBoard. Still later, the Government issued G.O.(Rt)No.209/2008/PD dated 2.8.2008 whereby the Government W.P(C).No.6134 of 2009-:37:-extended the validity of the Government order dated 24.2.2007up to 31.12.2008 and extended the benefit of waiver of minimumdemand charges to low tension industrial units and plantationswhich restart operations before 31.12.2008. The Board thereuponissued Ext.P3 order dated 30.8.2008. In clause (5) thereof it isstipulated that the benefit of waiver of minimum demand chargeswill be given to consumers whose service connection wasdismantled, if they re-open on or before 31.12.2008. In paragraph(6) it is stipulated that reconnection will be effected on remittanceof 1/3rd of arrears and interest for instalment (remittance of 1/3rdof arrears and interest as the first instalment as stated in thesubsequent Board orders). It is also stipulated that the balanceamount will have to be remitted in six instalments. Theconsequences of failure to effect such payment are also set outand they include withdrawal of the waiver of minimum demandcharges and fixed charges and disconnection of supply. Thepetitioner could not re-open its industrial unit before 31.12.2008for various reasons including the failure of the Board to act in timeto restore supply. It necessitated the filing of W.P.(C) No. 36490of 2008 in this Court. Though by Ext.P6 judgment delivered on9.1.2009, this Court disposed of W.P.(C) No.36490 of 2008 with a W.P(C).No.6134 of 2009-:38:-direction to the Electricity Board to take a decision within oneweek, the decision was not taken at the Board level but at theGovernment level as can be seen from Ext.P8 minutes. Ext.P8minutes reflects the decision taken at the meeting held on24.1.2009 in the Chambers of the Principal Secretary toGovernment (Industries & Commerce), which was attended by thePower Secretary, the Chairman of the Board, the Chief Engineer(Commercial and Tariff) and the Special Officer (Revenue) andtwo other officers of the Board. At that meeting, a decision wastaken to request the Chairman of the Board to accept the principalamount alone and to give power connection to the petitioner'sunit. The Chairman of the Board was also directed to consider therequest for waiver of minimum demand charges provided thepetitioner resumes production by 15.2.2009. That decision wascarried out and implemented in the meeting of the full timemembers of the Board held on 2.3.2009. It is not in dispute thatby then, the petitioner had remitted the sum of Rs.26,45,103/-comprising of Rs.20,77,353/- remitted on 24.1.2009 andRs.5,67,750/- remitted on 2.2.2009.22. Later, after the full time members of the Board decidedto effect reconnection of supply, on noticing that arrears of W.P(C).No.6134 of 2009-:39:-electricity duty to the tune of Rs.2,34,522/- is also due from thepetitioner, while communicating the decision of the full timemembers of the Board to the petitioner, by Ext.P11 letter thepetitioner was called upon to remit the sum of Rs.2,34,522/-. Thepetitioner remitted the said amount as well. These facts are notin dispute. After the petitioner complied with the decision takenby the full time members of the Board on 3.2.2009 by remittingthe entire arrears of energy charges (the principal alone) andarrears of electricity duty, the Special Officer (Revenue) sentExt.P13 letter dated 4.2.2009 to the Deputy Chief Engineer,Electrical Circle, Palakkad to effect reconnection as per rules so asto enable the petitioner to resume production by 15.2.2009. Thewords “as per rules” occurring in Ext.P13 letter was not onecontemplated by the full time members of the Board in theirdecision recorded in Ext.P13. This in turn prompted the DeputyChief Engineer to issue Ext.P14 letter dated 21.2.2009 wherebyhe called upon the petitioner to remit the sum of Rs.13,50,493/-towards the cost of works in the distribution side for effectingsupply to the petitioner's firm. The petitioner was informed thatthe Board has decided to consider the request of the petitioner forreconnection of supply as a special case, overlooking all other W.P(C).No.6134 of 2009-:40:-pending applications, subject to feasibility, after collecting the costfor construction of a new 22 KV feeder at the distribution side andafter collecting the proportionate cost for enhancing the capacityof 220 KV sub-station at Kanjikode. Such a letter was issued, ascan be seen from the letters on record, pursuant to Ext.P16 Boardorder dated 19.2.2009 which in turn discloses that it was issuedpursuant to the letter dated 7.2.2009 sent by the Deputy ChiefEngineer, Electrical Circle, Palakkad that to give supply of powerto the petitioner, the capacity of the 220 KV sub-station atKanjikode has to be enhanced by drawing a new 22KV feeder. Itis evident from Ext.P16 Board order that the Board treated thepetitioner as a new consumer seeking supply and not as aconsumer, whose supply has been dismantled, seeking the benefitof Ext.P3 Board order. A reading of Ext.P16 Board order indicatesthat the Board has not referred to Ext.P3 or the stipulation thereinthat reconnection should be effected on remittance of 1/3rd of thearrears and interest. The Board did not also refer to Ext.P8minutes, which evidences the decision taken on 24.1.2009 toaccept the principal amount alone from the petitioner and toconsider the request for waiver of minimum demand charges andpayment of interest separately if the unit is reopened on or before W.P(C).No.6134 of 2009-:41:-15.2.2009. In other words, the Board has proceeded on the basisthat the petitioner's case is not governed by the stipulations inExt.P3. 23. In my opinion, the stand taken by the Board in Ext.P16cannot be sustained. Neither the Government order dated2.8.2008 nor Ext.P3 Board order dated 30.8.2008 quoted abovestipulates that the consumer who is entitled to the benefitsthereunder should once again pay the expenses which he hasalready incurred for getting the power supply. The only stipulationin Ext.P3 Board order was that reconnection will be effected onremitting 1/3rd of the arrears and interest and the consumer willbe given a minimum of six instalments for payment of the balanceamount. However in the case of the petitioner, a decision wastaken to request the Chairman of the Board to accept the principalamount alone and to give power connection and to waive theminimum demand charges, interest etc., provided production isresumed on or before 15.2.2009. The full time members of theBoard that met on 3.2.2009 resolved to effect reconnection if thepetitioner pays the principal amount without the minimumdemand charges and the duty arrears and agrees to withdraw allcourt cases. Thereafter, a letter was sent informing the petitioner W.P(C).No.6134 of 2009-:42:-that if the petitioner pays the principal amount other thanminimum demand charges and Rs.2,34,522/- towards arrears ofelectricity duty, reconnection of supply will be effected. Thepetitioner remitted the said amount on the very next day andthereafter sought reconnection of supply. On the terms of Ext.P3Board order and the decision evidenced by Ext.P8 minutes andalso the decision taken by the full time members of the Board on3.2.2009, I am of the opinion that the demand in Ext.P16 cannotbe sustained. In view of Ext.P8 minutes and Ext.P11 letter whichreflect the decision of the full time members of the Board, theSecretary of the Board could not have in my opinion passedExt.P16 order. In any case, Ext.P16 order does not refer to anymeeting of the full time members of the Board after the meetingheld on 3.2.2009 or of the full board on any day prior to19.2.2009. There is also no statement in Ext.P16 order or in thevarious statements filed on behalf of the respondents to the effectthat Ext.P11 letter does not reflect the decision of the full timemembers of the Board that met on 3.2.2009.24. It is not in dispute that the petitioner had prior to4.1.2009 taken steps to restart its unit and had also obtainedsanction on 4.2.2009 for re-energisation of the unit as required W.P(C).No.6134 of 2009-:43:-under rule 63 of the Indian Electricity Rules, 1963 from theElectrical Inspector, Palakkad. The materials on record disclosethat the petitioner had acting on the promise held out in Ext.P3Board order and in Ext.P8 decision altered its position, remittedthe sum of Rs.26,45,103/- towards payment of arrears of energycharges excluding minimum demand charges and Rs.2,34,522/-towards electricity duty and in addition incurred expenditure forrepairing and renovating the industrial unit. It is relevant in thiscontext to note that the Government and the Board have beenperiodically extending the benefit of waiver of minimum demandcharges and fixed charges to industrial units like the petitioner'swhich had been closed and the supply to which had beendismantled. Even in the latest of the orders issued by the Boardnamely the order dated 20.11.2012, it is not stipulated that aconsumer whose supply has been dismantled and is seekingwaiver of minimum demand charges and reconnection of supplywill have to pay for transmission side development charges toaugment the capacity of the sub-station or expenses on thedistribution side if the feeder supplying power is over loaded orthat such applicants will be treated as prospective consumersseeking fresh electricity connection. The Board has no case that W.P(C).No.6134 of 2009-:44:-the promise held out in Ext.P3 Board order is contrary to law oroutside the authority of the Board or the Government. The Boardhas also no case that in public interest, the representation or thepromise held out in Ext.P3 has since been withdrawn. On theother hand, the Board order dated 20.11.2012 discloses thatwithout interruption, for the past more than six years, the Boardhas been extending the benefit held out in Ext.P3 to consumerslike the petitioner, the supply to whose industrial units was eitherdisconnected or dismantled. I accordingly hold that the demandmade in Ext.P16 Board order which in turn is reflected in Ext.P14letter, for payment of transmission and distribution sidedevelopment charges cannot be sustained. On the terms of Ext.P3Board order, Ext.P8 minutes and the decision of the full timemembers of the Board reflected in Ext.P11 letter, the petitionerwas entitled to restoration of supply on payment of the principalamount of arrears of energy charges excluding the minimumcharges and arrears of electricity duty in the event of the unitrestarting production before 15.2.2009. On account of the standtaken by the Board, notwithstanding the fact that sanction hadbeen accorded by the Electrical Inspector to restart the unit, thepetitioner could not restart the unit. It was only pursuant to the W.P(C).No.6134 of 2009-:45:-interim order passed by the learned single Judge on 8.4.2009 thatthe Board restored electricity supply to the petitioner's industrialunit on 27.6.2009 and that too only after a new high tensionagreement was executed on 25.6.2009. As the unit was ready forre-energistaion before 15.2.2009, the mere fact that re-energisation was done only on 27.6.2009 on account of the standtaken by the Board, cannot in my opinion, on the facts of theinstant case, be a reason to deny the petitioner, the benefitsflowing from Ext.P3 Board order, Ext.P8 minutes and Ext.P11letter evidencing the decision taken by the full time members ofthe Board at their meeting held on 3.2.2009. I accordingly holdthat the petitioner is entitled to succeed. For the reasons stated above, I allow the writ petition,quash Ext.P16 Board order and Ext.P14 letter to the extent theydemand payment of transmission side and distribution sidedevelopment charges by the petitioner. In view of the concessionmade by the learned Senior Counsel appearing for the petitionerthat the petitioner does not press the challenge to the demand foradditional cash deposit of Rs.16,00,000/-, I direct that the amountpaid by the petitioner in instalments commencing from July, 2009pursuant to the order dated 9.6.2009 passed by the Division W.P(C).No.6134 of 2009-:46:-Bench in R.P. No.432 of 2009 in W.A.No. 925 of 2009, less thesum of Rs.16,00,000/- shall be refunded to the petitioner oradjusted against the future electricity bills. Needless to say, thepetitioner will be entitled to simple interest at 7.5% per annum onthe amounts deposited by the petitioner in instalments pursuantto the order of the Division Bench referred to above and the saidamount will also have to be refunded or adjusted against thefuture energy bills. The dispute raised by the petitioner as regardsthe availability of the sum of Rs.4,25,816/- shall be enquired intoby the Special Officer (Revenue) with notice to the petitioner andif the said amount is available, it shall also be treated as part ofthe cash deposit. The parties shall bear their respective costs. P.N.RAVINDRAN, (JUDGE)ahg/rkc/vps W.P(C).No.6134 of 2009-:47:- W.P(C).No.6134 of 2009-:48:-ahg/rkc W.P(C).No.6134 of 2009-:49:- P.N.RAVINDRAN,Judge.ahg. P.N.RAVINDRAN, J.-------------------------------------------------------JUDGMENT27th November, 2012