A.K. Jayasankaran Nambiar, J.

1. The Chief Engineer, Kerala State Electricity Board, its Special Officer (Revenue), and the Deputy Chief Engineer are the appellants before us in this Writ Appeal that impugns the judgment of a learned Single Judge dated 02.03.2022 in WP(C). No. 10199 of 2014.

2. The brief facts necessary for disposal of this Writ Appeal are as follows:

The respondent writ petitioner was an HT consumer under the Electrical Section, Beypore bearing consumer code 5/519, with a contract demand of 65 KVA. The factory of the writ petitioner was under lockout from August to December 1995 and while the activities restarted immediately thereafter, the writ petitioner could not achieve the required levels of production for various reasons, including labour unrest, non-availability of power supply owing to power cut etc. For the period from January 1995 to October 1998, the writ petitioner was served with a demand notice seeking payment of arrears of Rs. 2,98,435/-, together with interest. It is not in dispute that the said amounts were not paid by the writ petitioner. Although, there appears to have been a series of litigation that was initiated at the instance of the writ petitioner challenging the demand of arrears of electricity charges from him, the same did not yield any favourable results. For the period from January 1995 to January 2005, the writ petitioner was served with yet another demand notice, this time seeking payment of arrears of Rs. 19,72,291/-. The said amount also was not paid by the writ petitioner, thereby resulting in an enhancement of the arrear amount to Rs. 26,06,602/-as evidenced by Ext.P21 notice dated 15.06.2007. While arriving at the said figure, the amounts that were covered by stay orders passed by this Court from time to time in the Original Petitions/Writ Petitions preferred by the writ petitioner were taken into account, together with the request of the writ petitioner for reduction in the rate of interest on the amounts demanded.

3. The Government had in the meanwhile, through a Government Order dated 21.02.2006, granted concessions by way of waiver of the minimum demand charges for electricity in respect of closed industrial units which had since commenced their operations on or before 31.03.2006. The waiver of minimum demand charges was in respect of electricity that was made available to the units during the period of closure. While the first Government Order dated 21.02.2006 granted the benefit of waiver of minimum demand charges to those industrial units that were closed, but had subsequently resumed their operations on or before 31.03.2006, the benefit was extended in subsequent years to units that had resumed their operations on subsequent dates. It is not in dispute that the benefit of the said Government Order dated 21.02.2006 was extended uptil 2012, by which time the writ petitioner's unit had also become fully functional. The writ petitioner on coming to know of the Government Order dated 21.02.2006, approached the Board with a request for waiver of the MD charges for the period from January 1995 to January 2005, inter alia, on the contention that his unit had also to be treated as a closed unit since the consumption of electricity in the unit was minimal and not sufficient for operating the machines therein. The contention, in other words, was that inasmuch as only such amount of electricity, as was required for lighting purposes at the factory, was consumed during the period between January 1995 and January 2005, the petitioner's factory had to be seen as a closed industrial unit for the said period, for the purposes of the government orders referred above.

4. The representations/appeals preferred by the writ petitioner were finally considered by the Government, which by Ext.P18 order dated 04.07.2006 took note of the Government Order dated 21.02.2006 referred above and found that since it was the stated intention of the writ petitioner to reopen his unit urgently, and further, he had promised that arrears prior to May 1999 as well as charges for power consumed after 1999 would be paid fully if installment facility was offered, the concession announced in the Government Order referred above could be extended to the petitioner's firm. The Government also directed that the grant of temporary connection to the firm could be considered after payment of 50% of the outstanding dues. The writ petitioner, however, did not avail the benefit of the said Government Order dated 04.07.2006. He chose rather to continue to make representations before the Board, pointing out that he was entitled to an unconditional waiver of the minimum demand charges for the entire period from January 1995 to January 2005. The said representations eventually resulted in Ext.P29 order of the Board, by which the Board revised the demand in relation to the petitioner to an amount of Rs. 8,77,310/-. The said figure was arrived at by computing the arrears of current charges from June 1995 to May 1999 (MD + CC) and computing interest on the said amount at the rate of 6% per annum upto 29.02.2012. To the said amount, an amount of Rs. 2,38,732/-representing the arrears of current charge for the period from June 1999 to January, 2005 by treating the connection as converted to LT with effect from June 1999, was added. Interest at the rate of 6% per annum on the said amount was also computed for the period upto 29.02.2012. The writ petitioner was directed to comply with the requirement of payment of the said amount on or before 29.02.2012, failing which it was made clear that the service to the premises of the writ petitioner would be dismantled and the entire concessions granted under the Scheme cancelled, leaving the Board with the right to take coercive steps to realise the entire arrears with interest as per Rules. It is not in dispute that the writ petitioner did not comply with the said directions issued by the Board in Ext.P29 order, thereby losing out on the benefits granted to him therein.

5. The writ petitioner then chose to approach the Consumer Grievance Redressal Forum under the Electricity Act and Rules for redressing his grievance and re-iterating his claim for a complete waiver of the minimum demand charges for the period from January 1995 to January 2005. When his claim petition before the Consumer Grievance Redressal Forum was rejected, he approached the State Electricity Ombudsman, who, by Ext.P35 order, found as follows:

"DECISION

From the analysis done above and the Findings and conclusions arrived at, I take the following decision.

(1) The SOR office is found to be very lenient in dealing the issue during the initial period of dispute, i.e. in 1995-06 period when the SOR has lavishly issued installments, for paying the monthly bills of 7/94, 8/94 and 1/95 to 3/95 and this paved the way for piling up of arrears. The granting of installments for monthly bills in succession without citing valid reasons is illegal and arbitrary. Further there was no action taken for issue of notices for disconnecting the supply even when there was further default in the payment of installments allowed and in paying the current month electricity bills. Hence I see lapse and negligence on the part of SOR, in dealing this case, in the initial period.

(2) The appellant contends that only nominal energy was used by him for the period of 8/1995 to 1/2005 and it is not sufficient to run a factory. The Board has provided the electric supply and it is the consumer who has to use the energy according to his plan and purpose. The Board is not responsible for the 'non-use of energy' by the consumer. The power cut is general to all industrial consumers and the consumer has to go by it. If the consumer wants reductions in electricity charges, he should remove the unwanted load.

(3) The argument of the appellant that due to power cut and allocation of reduced power quota prevented him from running a factory is not convincing.

(4) The Party states that the Govt. order dated 4.7.2006, issued on his petition, has ordered full waiver of MD Charges from him. The Govt. order granting MD waiver to closed industrial units was issued for the first time in 2/2006, intended for restarting the closed industrial units and Plantations. But the fact is that the MD waiver is applicable only to the 'closed industrial units' during their period of closure. But the appellant's factory was in service till 1/2005, after getting the reconnection in 3/1996. The consumer has not an argument that his electric supply was disconnected during this period. The party claims that his unit was in 'closed condition' due to labor problem, lock out, power cut etc. But the appellant was using electricity throughout the period of 3/1996 to 1/2005 (and has not paid the electricity charges for the same period), hence not eligible for any benefits as per the Govt. order.

(5) I find that the KSE Board's decision, vide Order No. HTB-5/59/SOR/11/12 dated 14.2.2012 of the Special Officer (Revenue), has considered his request for converting to LT status from the date of application in 6/1999 and has also allowed 6% interest for the belated period and fixed the liability as Rs. 8,77,310, as reasonable. Hence, though the Board has asked to comply with its decision on or before 29.02.2022, to avail the benefit granted in the said Order, I direct the respondent to give extension of time up to 60th day of this order, so that the consumer may get the benefit granted, if he wants to settle a long pending issue. The consumer need not pay any interest for the said amount, during the appeal pending duration before this Forum. The KSEB (Respondents) is directed to issue the Bill for Rs. 8,77,310/-, giving 30 days time (Due date) to make the payment. The consumer shall be allowed up to fifteen installments, if requested for by the consumer to pay the Bill, but the installments will carry interest, as per clause 22(8) of the Electricity Supply Code, 2005, from the 'due date' of the Bill to the date of payment of installment. The consumer is liable to pay the whole bill amount or the 1st installment by the 'due date' fixed as per this order. If the consumer defaults in payments, the concession granted and extended by this order will cease to exist, after the specified period of 60 days of this order and KSEB is free to take steps as per rules.

The Appeal Petition filed by the appellant vide No. P/280/2012, is found having no merits and is dismissed. Having concluded and decided as above, it is ordered accordingly.

No order on costs."

6. It was aggrieved by Ext.P35 order of the Ombudsman that the petitioner approached the Writ Court with the Writ Petition aforementioned.

7. The learned Single Judge, on a consideration of the averments in the Writ Petition, as also the averments in the counter affidavit filed by the Board and the reply affidavit filed on behalf of the writ petitioner, found that the Government had in fact, exempted closed units from payment of MD charges during the period of closure and extended the period of the said benefit from time to time. The learned Single Judge felt that the Ombudsman had not considered the scope and ambit of the said Government Order while denying the relief to the writ petitioner. It was in particular observed that the Ombudsman, while dealing with the matters, was required to go into the material indicating such as the certificate of the District Labour Officer dated 09.03.1996 as also Ext.P2 document that revealed that the company was closed with effect from August 1995. A reference was also made to Ext.P25 Minutes of the Meeting dated 11.04.2008, which directed the Electricity Board to extend to the firm the concession of waiver of minimum demand and convert the power connection from HT to LT and temporary connection in accordance with the directions contained in the Government Order dated 04.07.2006. Finding that, the Ombudsman had not taken into account these facts, the impugned order of the Ombudsman was set aside, and the Writ Petition allowed. The Board was also directed to issue revised bills taking into consideration of the observations of the judgment, and the terms of the Government Order dated 16.07.2012, where the benefit of waiver was granted upto 31.12.2012.

8. In the Appeal before us, the contention of the learned Senior counsel Sri. Raju Joseph, duly assisted by Sri. C. Joseph Antony, appearing on behalf of the appellants, is essentially that the learned Single Judge did not appreciate the true scope and ambit of the Government Order (Ext.P18) and the circumstances that led to the passing of Ext.P29 order of the Board and P35 order of the Ombudsman. He would point out that the benefit of a reduced demand, that was granted to the petitioner by Ext.P18 order of the Government, could not be availed by the writ petitioner only because he chose not to comply with the conditions required for obtaining the benefit of the said order. In other words, it is his contention that while Ext.P18 order reduced the demand in relation to the petitioner to a significantly lower amount by directing the Board to extend the benefit of the Government Order dated 21.02.2006 to the writ petitioner as well, the writ petitioner could not avail the benefit of the said Government Order solely because he chose not to comply with the conditions in Ext.P18 order. It is further pointed out that even in Ext.P29 Board order, the benefit of a reduced demand was extended to the petitioner, but for reasons best known to him, he did not comply with the conditions stipulated therein for obtaining the benefit of the concessional demand. It is contended that it is only on account of the actions of the writ petitioner that he could not avail the benefit of the concessional demand, and he was not entitled to the benefit of the Government Order dated 21.02.2006 since he could not satisfy the conditions stipulated therein for obtaining the benefit.

9. Per contra, it is the submission of Sri. Shyam Padman, the learned counsel appearing for the writ petitioner, that there was absolutely no doubt regarding the entitlement of the petitioner to the benefit of the Government Order dated 21.02.2006. It is pointed out that the period envisaged therein for reopening the unit was extended in subsequent years till 2012, by which time the petitioners unit had also revived and commenced normal operations. He contends, therefore, that in the light of the directions in Ext.P18 order of the Government which directed the Board to extend the benefit of the concessions offered through the Government Order dated 21.02.2006 to the writ petitioner also, it was not open to the Board to raise a demand contrary to the directions in Ext.P18 Government Order. He would submit that the petitioners unit had to be treated as a closed unit for the purposes of the Government Order dated 21.02.2006 since, during the period from January 1995 to January 2005, the unit of the petitioner was hardly working as an industrial unit and the limited consumption of electricity during the relevant time was for the purposes of lighting in the said premises. The submission, in other words, is that the reference to closed industrial units in the Government Order referred to above should be taken as a reference to those industrial units which, on account of the non-availability of adequate power supply, could not achieve their full production capacity, and therefore, were operating on limited capacity.

10. We have considered the rival submissions and also gone through the pleadings before us. On a consideration of the same, we find ourselves unable to sustain the impugned judgment of the learned Single Judge to the extent it set aside Ext.P35 order of the Ombudsman that was impugned in the Writ Petition. We note from the facts available before us that the benefit of the Government Order dated 21.02.2006 was issued so as to facilitate the resumption of operations by closed industrial units. Those units that were remaining closed for a particular period and had restarted their operations on any date before 31.03.2006 were extended the benefit of waiver of minimum demand charges for electricity for the period of closure of those units. The question that arises in the instant case is essentially whether the writ petitioner's unit would qualify for the benefit of the said Government Order. Although it is the case of the writ petitioner that the unit remained closed and was reopened only in 2011, we find from the representations preferred by the petitioner during the period between 1995 and 2000 that his attempt was always to seek a higher allocation of power supplied to the unit for the purposes of enhancing production at his unit. In other words, while it may be a fact that the actual consumption of electricity in the premises was low, the intention of the petitioner was never to close the industrial unit, although it may be a fact that the actual production in the industrial unit was at a significantly lower level. In our view, the benefit of the Government order was not intended to favour those industrial units that did not actually close down their industrial operations but were working albeit on a reduced scale. However, we find that the Government in Ext.P18 order had considered the specific case of the petitioner and had decided to extend the benefit of the said Government Order to the petitioner as well for the period between 1995 and 2005 subject to certain conditions. One of those conditions was that the petitioner gave up his claim for waiver of the MD charges for the period from 1995 to 1999 and paid the current charges for the period after May 1999, for getting the benefit of waiver of MD charges for the period from 1999 to 2005. For reasons best known to the writ petitioner, he did not comply with the said conditions, which would have enabled him to obtain the concessions offered by the Government in Ext.P18 order. Even thereafter, when Ext.P29 order was passed by the Board, we find that the Board had unilaterally extended the benefit of a conversion of the tariff from HT to LT to the petitioner's unit with effect from 1999. The Board also revised their original demand and scaled it down from approximately Rs. 19 lakhs to the figure of Rs. 8,77,310/-on condition that the petitioner effected the payment of the said amount within the time stipulated in Ext.P29 order, making it clear that if the petitioner did not comply with the said conditions, then he would lose the benefit of concessional demand offered in Ext.P29 order and that the original demand raised against the petitioner together with interest (approximately Rs. 19 lakhs) would be revived. Once again, for reasons best known to the writ petitioner, he did not comply with the conditions in Ext.P29 order for obtaining the benefits envisaged therein. Thereafter, although Ext.P29 order was impugned before the Consumer Grievance Redressal Forum and thereafter before the Electricity Ombudsman, the Ombudsman, while rejecting the contention of the writ petitioner that he was entitled as of right to the benefit of the Government Order dated 21.03.2006 as extended from time to time, maintained the benefits granted to the petitioner by Ext.P29 order of the Board. The relevant portion of the order of the Ombudsman reads as follows:

"DECISION

From the analysis done above and the Findings and conclusions arrived at, I take the following decision.

(1) The SOR office is found to be very lenient in dealing the issue during the initial period of dispute, i.e. in 1995-06 period when the SOR has lavishly issued installments, for paying the monthly bills of 7/94, 8/94 and 1/95 to 3/95 and this paved the way for piling up of arrears. The granting of installments for monthly bills in succession without citing valid reasons is illegal and arbitrary. Further there was no action taken for issue of notices for disconnecting the supply even when there was further default in the payment of installments allowed and in paying the current month electricity bills. Hence I see lapse and negligence on the part of SOR, in dealing this case, in the initial period.

(2) The appellant contends that only nominal energy was used by him for the period of 8/1995 to 1/2005 and it is not sufficient to run a factory. The Board has provided the electric supply and it is the consumer who has to use the energy according to his plan and purpose. The Board is not responsible for the 'non-use of energy' by the consumer. The power cut is general to all industrial consumers and the consumer has to go by it. If the consumer wants reductions in electricity charges, he should remove the unwanted load.

(3) The argument of the appellant that due to power cut and allocation of reduced power quota prevented him from running a factory is not convincing.

(4) The Party states that the Govt. order dated 4.7.2006, issued on his petition, has ordered full waiver of MD Charges from him. The Govt. order granting MD waiver to closed industrial units was issued for the first time in 2/2006, intended for restarting the closed industrial units and Plantations. But the fact is that the MD waiver is applicable only to the 'closed industrial units' during their period of closure. But the appellant's factory was in service till 1/2005, after getting the reconnection in 3/1996. The consumer has not an argument that his electric supply was disconnected during this period. The party claims that his unit was in 'closed condition' due to labor problem, lock out, power cut etc. But the appellant was using electricity throughout the period of 3/1996 to 1/2005 (and has not paid the electricity charges for the same period), hence not eligible for any benefits as per the Govt. order.

(5) I find that the KSE Board's decision, vide Order No. HTB-5/59/SOR/11/12 dated 14.2.2012 of the Special Officer (Revenue), has considered his request for converting to LT status from the date of application in 6/1999 and has also allowed 6% interest for the belated period and fixed the liability as Rs. 8,77,310, as reasonable. Hence, though the Board has asked to comply with its decision on or before 29.02.2022, to avail the benefit granted in the said Order, I direct the respondent to give extension of time up to 60th day of this order, so that the consumer may get the benefit granted, if he wants to settle a long pending issue. The consumer need not pay any interest for the said amount, during the appeal pending duration before this Forum. The KSEB (Respondents) is directed to issue the Bill for Rs. 8,77,310/-, giving 30 days time (Due date) to make the payment. The consumer shall be allowed up to fifteen installments, if requested for by the consumer to pay the Bill, but the installments will carry interest, as per clause 22(8) of the Electricity Supply Code, 2005, from the 'due date' of the Bill to the date of payment of installment. The consumer is liable to pay the whole bill amount or the 1st installment by the 'due date' fixed as per this order. If the consumer defaults in payments, the concession granted and extended by this order will cease to exist, after the specified period of 60 days of this order and KSEB is free to take steps as per rules.

The Appeal Petition filed by the appellant vide No. P/280/2012, is found having no merits and is dismissed. Having concluded and decided as above, it is ordered accordingly.

No order on costs."

11. When we analyze the aforesaid sequence of events that led to Ext.P35 order of the Ombudsman, we cannot but agree with the findings of the Ombudsman and observe that the petitioner has no one else to blame but himself for the predicament that he now finds himself in. The concessions granted by the Government and the Board from time to time were in his favour, notwithstanding the fact that on a strict interpretation of the Government Order dated 21.02.2006, his unit would not qualify for the benefit of concessions envisaged therein for the simple reason that the unit was not a closed industrial unit. We, therefore, cannot sustain the impugned judgment of the learned Single Judge that set aside the order of the Ombudsman. We, therefore, allow this Writ Appeal by setting aside the impugned judgment of the learned Single Judge and restoring Ext.P35 order of the Ombudsman subject to the modification noted below.

12. We deem it appropriate to direct that if the respondent writ petitioner pays the amount of Rs. 8,77,310/-to the appellants herein in six equal successive monthly installments commencing from 15th March, 2023, together with the interest computed on the said amount @ 6% per annum from 15.03.2023 to the payment of the last installment directed above, then the dues outstanding from the petitioner to the appellants shall be treated as fully and finally settled. We make it clear, however, that if the writ petitioner chooses to not comply with the said conditions, then he will lose the benefit of this judgment and it will be open to the appellants to proceed against him for recovery of the entire amount found due, without the concessions offered to him.