Abdurahim v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **THURSDAY, THE 2ND DAY OF JANUARY 2014/12TH POUSHA, 1935** ## **WP(C).No. 4229 of 2012 (C) -------------------------------------** ## **PETITIONER(S): -----------------------** **ABDURAHIM, AGED 55 YEARS, CHAIRMAN, SNEHA COLLEGE OF TEACHER EDUCATION, ATTAYAMPATHY, GOVINDAPURAM P.O, PALAKKAD DISTRICT, PIN. 678507.** **BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SRI.JIJI THOMAS** ## **RESPONDENT(S):** **-------------------------** **1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY KERALA GOVERNENT SECRETARIAT, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM-695001.** **2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, MUTHALAMADA-678507.** **3. THE SUB ENGINEER IN-CHARGE ELECTRICAL SECTION, MUTHALAMADA-678507.** **BY ADV.SRI.SAJEEVKUMAR K.GOPAL, SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 4229 of 2012 (C) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1: TRUE COPY OF THE NOTICE DATED 10-1-2012 ISSUED by the 3RD RESPONDENT.** - **EXHIBIT P2: TRUE COPY OF THE SHORT ASSESSMENT BILL DATED 11-1-2012 ISSUED BY -DO-** - **EXHIBIT P3: TRUE COPY OF LETTER DATED 17-1-2012 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE OBJECTION DATED 11-01-2012 ISSUED BY THE PETITIONER.** **EXHIBIT P5: TRUE COPY OF THE HEARING PROCEEDINGS ENTERED BY THE 3RD RESPONDENT DATED 9-1-2012.** **EXHIBIT P5(a): COPY OF ENGLISH TRANSLATION OF EXT.P5.** - **EXHIBIT P6: TRUE COPY OF THEIMPUGNED FINAL ORDER DATED 9-2-2012 BY THE 3RD RESPONDENT.** **EXHIBIT P6(a): COPY OF ENGLISH TRANSLATION OF EXT.P6.** **EXHIBIT P7: TRUE COPY OF THE NOTICE DATED 9-2-2012 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P8: TRUE COPY OF THE ASSESSMENT BILL DATED 9-2-2012 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P9: TRUE COPY OF THE ORDER DATED 28-5-2010 IN W.A. NO.560/2010 OF THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS** **---------------------------------------** **/ TRUE COPY /** ## **P.S. TO JUDGE** **NIL.** **PJ** ## C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 4229 of 2012 --------------------------------Dated this the 2[nd] day of January, 2013 ## JUDGMENT The petitioner is the Chairman of an unaided educational institution conducting B.Ed course. There was an electric connection provided in the said institution with Consumer No.6410 in LT-VIA tariff. At the instance of the Accountant General's Audit Team, the field officers of the 1[st] respondent conducted an inspection at the premises on 7.1.2012. Alleging that the petitioner being a self financing educational institution it ought to have been charged LT VII A (commercial tariff) as well as alleging detection of unauthorised additional load to the extent of 9 KW, Ext.P2 provisional invoice was issued accompanied with Ext.P1 notice. Eventhough the petitioner filed detailed objections., the assessment was finalised by the 2[nd] respondent through Ext.P6 order. Ext.P8 is the consequential demand issued. It is challenging Exts.P6 and P8 this writ petition is filed. 2. Contention of the petitioner is two folded. One is that the petitioner is not liable to be charged under LT VIIA tariff. The WP(C). 4229/2012 2 position in this respect now stands settled through a Division Bench decision of this court in **Bro. Joseph Antony vs. KSEB (2009(3) KLT 1022).** But learned Standing Counsel appearing for the respondent Board submitted that the above said decision is pending in challenge before the hon'ble Supreme Court in various Special Leave petitions filed by the Board and the hon'ble apex court had stayed the operation of the said judgment. Learned counsel for the petitioner contended that, unless the hon'ble Supreme Court reverse the view taken by the Division Bench, the respondents are not entitled to collect the arrears at the higher tariff. In this regard he placed reliance on a Division Bench decision of this court in **Abdu Rehiman vs. District Collector, Malappuram (2009(4) KLT 485).** **3.** It is brought to notice of this court that , on an identical situation another Division Bench of this court had issued Ext.P9 order. Finding that the issue has to be ultimately decided by the hon'ble Supreme Court and observing that the judgment in **Bro. Joseph Antony's case** is under stay, the Board can be permitted to collect the electricity charges at the enhanced tariff. WP(C). 4229/2012 3 But the Division Bench made it clear that, it is only just and proper in the interest of justice to restrain the Board from recovering the arrears if any due at the enhanced tariff until the matter is ultimately decided by the Supreme Court. It is pointed out that the above direction has been followed in various other cases disposed of by this court. 4. In view of the position remaining as above, the Board is restrained from collecting the difference in tariff demanded through Exts.P2, P6 and P8, until a final decision is arrived on the issue in the Special Leave petitions pending before the hon'ble Supreme Court. However the petitioner will be liable to pay electricity charges due for the current periods at the enhanced tariff of LT VII A. 5. The next issue is regarding imposition of penalty on the allegation of unauthorised additional load. The fact that the petitioner had exceeded load is not in dispute. Learned counsel for the petitioner pointed out that, in view of the dispute existing with respect to applicability of the enhanced tariff, no penalty can be imposed on the fixed charges and the current charges at LT- WP(C). 4229/2012 4 VII A tariff. As observed above, since the issue regarding applicability of the enhanced tariff is yet to be decided finally, it is not proper to permit the Board to impose penalty at the enhanced tariff. 6. Under the above mentioned circumstances the writ petition is allowed. Exts.P6 and P8 are hereby quashed. The 2[nd] respondent is directed to reassess the petitioner on the unauthorised load detected at the rates applicable under LT-VIA at two times of the fixed charges for a period of one year preceding the date of inspection, at the rates applicable as on that date. Penalty on current charges on the proportionate consumption of unauthorised additional load shall also be imposed at the very same rate for the very same period, at one time. 7. It is made clear that imposition of penalty as directed above will be on a provisional basis, subject to outcome of the decision of the hon'ble Supreme Court on the issue of the applicability of the tariff. If the ultimate decision is in favour of the Board, the Board will be entitled to recover the balance WP(C). 4229/2012 5 amount. 8. The 2[nd] respondent shall issue a revised penal bill on the basis of the above directions, affording reasonable time for payment of balance amount if any due. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 4229/2012 6