ATC Telecom Tower Corporation (P) Ltd., formerly known as M/s. Essar Telecom Infrastructure (P) Ltd. v Kerala State Electricity Board and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 17TH DAY OF MARCH 2014/26TH PHALGUNA, 1935 WP(C).No. 33282 of 2011 (I) ---------------------------- PETITIONER: ----------ATC TELECOM TOWER CORPORATION (P)LTD., FORMERLY KNOWN AS M/S.ESSAR TELECOM INFRASTRUCTURE(P)LTD., 36/2624, FIRST FLOOR CHERAMANGALATHU HOUSE, SHENOY ROAD, COCHIN-682017 REPRESENTED BY DEPUTY MANAGER (LEGAL) MR.BABU PATTATHANAM. BY ADVS.SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENT(S): -------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHIBHAVANAM, PATTAM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY-695 001. 2. THE DEPUTY CHIEF ENGINEER, K.S.E.BOARD, ELECTRICAL CIRCLE, SREEKANDAPURAM, KANNUR DISTRICT PIN-670 631. 3. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, KUTHUPARAMB KANNUR DISTRICT-670 631. 4. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION, VELLAYAMBALAM THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRMAN-695 001. R1-R4 BY ADV. SMT.P.K.RADHIKA, SC, KSEB R1-R4 BY ALISHA MATHEW, SC, KSEB R4 BY ADV. SRI.S.SUJIN, SC, ELECTRICITY REGULATORY COMMISSION R BY SRI.K.M.SATHYANATHA MENON,SC,KSEB R BY SRI.ANEESH JAMES,SC,KSEB REGULATORY COMMISSION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33282 of 2011 (I) ## **A P P E N D I X** ## PETITIONER'S EXHIBITS EXT.P1: PHOTOCOPY OF THE PERMISSION ORDER NO.B3/439/2008/EIN DT.29.05.2009 ISSUED TO THE PETITIONER. EXT.P2: PHOTOCOPY OF THE RECEIPTS ISSUED BY THE 3RD RESPONDENT FOR THE PAYMENT OF APPLICATION FEE AND REGULARIZING FEE DATED 30.03.2009. EXT.P3: TRUE COPY OF THE REGULAR MONTHLY BILL DATED 5.9.2011 AND PAYMENT RECEIPT DT.29.09.11 ISSUED BY THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF THE SHORT ASSESSMENT BILL DT.8.11.11 ISSUED TO THE PETITIONER. EXT.P5: TRUE COPY OF THE REPLY DATED 1.12.11 SUBMITTED TO THE 3RD RESPONDENT. EXT.P6: TRUE COPY OF THE BOARD ORDER NO.B.O.(FB) NO.46/2003 (Plg.Com 4206/01 DT.15.1.03. EXT.P7: PHOTOCOPY OF THE BOARD ORDER NO.DPC1/C-182/2007 NO.368/2008 DATED 7.2.2008 ISSUED BY THE 1ST RESPONDENT. EXT.P8: TRUE COPY OF THE JUDGMENT DT.10.02.06 IN O.P.NO.26408/2000 BEFORE THE HON'BLE HIGH COURT OF KERALA. EXT.P9: TRUE COPY OF THE JUDGMENT IN R.P.NO.974/2006 IN O.P.26408/2000. EXT.P10: TRUE COPY OF THE INTERIM ORDER DT.9.7.2010 IN WPC.NO.21396/2010 ON THE FILE OF THIS HON'BLE COURT. ## RESPONDENTS' EXHIBITS NIL. /TRUE COPY/ P.S TO JUDGE **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.33282 of 2011-I ---------------------------------------------------Dated this the 17[th] March, 2014** ## **J U D G M E N T** The petitioner is a limited Company providing infrastructure facilities to mobile telephone operators. The Company has been provided with an electricity connection by the 3[rd] respondent. The Consumer Number of the petitioner is 15434. The petitioner is being billed in accordance with the rates applicable to LT VII A tariff. The connected load of the petitioner was 11 KW. On 30.03.2009, the petitioner had applied for enhancement of the connected load by 9 KW. On the same day itself, the additional connected load was also sanctioned. 2. In the above circumstances, the petitioner was served with Ext.P4 bill dated 08.11.2011 demanding an amount of Rs.48,393/- being the energy charges and fixed charges for the period from February, 2009 to October, 2011. Penal charges have also been levied on the petitioner for the period from February, 2009 to March, 2009. The 2 **W.P(c) No.33282 of 2011-I** petitioner immediately submitted Ext.P5 objections. However, without considering the objections, the electricity to the petitioner's establishment was disconnected. The petitioner thereupon approached this Court by filing this Writ Petition. 3. This Writ Petition was admitted and as per order dated 13.12.2011, a direction was issued to restore the electric connection of the petitioner on condition that an amount of Rs.25,550/- was deposited. Accordingly, the petitioner deposited the amount and the electricity connection was restored. 4. According to Sri Santhosh Mathew, who appears for the petitioner, Ext.P4 is not a penal bill. As per Ext.P4, what has been done is to demand additional charges in respect of a period for which he had already been served with regular bills. On the basis of the said bills, he had also made payments. Therefore, the entire issue had been closed. The authorities have no power to re-open the said issue again. The case of the respondents that, though **W.P(c) No.33282 of 2011-I** 3 additional connected load had been sanctioned to the petitioner he had been billed only in accordance with the original connected load that was sanctioned, cannot be accepted in view of Section 56(2) of the Electricity Act, 2003 (hereinafter referred to as `the Act' for short). Reliance is also placed on the decisions of this Court reported in **Jomy Thomas Manjooran v. K.S.E.B** [2013(1) KLT 595] to support the proposition that the respondents have no power to demand additional energy charges in respect of the past periods for which bills had been served on the petitioner and payments made. 5. Advocate P.K.Radhika appears for the respondents. A counter affidavit has been filed on behalf of the respondents. According to the counter affidavit, Ext.P4 bills had to be issued for the reason that, an audit objection had been raised by the office of the Accountant General, Thiruvananthapuram, on 11.05.2011. The omission to bill the petitioner for the additional connected load that had been sanctioned, was the result of a genuine mistake. By **W.P(c) No.33282 of 2011-I** 4 serving Et.P4 what has been done is only to rectify the said mistake. According to the learned counsel for the respondents, upon an inspection conducted by the Anti Power Theft Squad (`APTS' for short) on 18.11.2008, it was found that the petitioner's establishment had an unauthorised connected load of 4 KW. Therefore, a penal bill of Rs.79,109/- had been issued, which was also paid by the petitioner. Referring to Ext.P5 objections submitted by the petitioner it is pointed out by the learned counsel for the respondents that, the petitioner has admitted the omission to bill him for the additional connected load as the result of a genuine mistake. He has also stated in Ext.P5 that the liability to pay fixed charges in respect of the additional connected load that had been omitted to be billed was not being disputed. In the light of the said stand taken in Ext.P5 it is contended that, it is not open to the petitioner to take a different posture before this Court. Therefore the counsel contends that this Writ Petition is only to be dismissed. The additional bill Ext.P4 has been issued under **W.P(c) No.33282 of 2011-I** 5 Regulation 24(5) of the Kerala Electricity Supply Code, 2005. Since the authorities are empowered to issue such a bill, the complaint of the petitioner lacks substance, it is pointed out. 6. Heard. The stand taken by the petitioner in Ext.P5 objections is contained in the following paragraph: “It is admitted that you have not charged the additional fixed charge ought to have been imposed after the enhancement of the connected load from 11 KW to 20 KW. Being a reputed company having a fare practice, we are not disputing our liability to pay the additional fixed charge that you have missed to collect from us because as per your records, now we have a connected load of 11 KW.” 7. It is clear from the above that, the petitioner has admitted the genuineness of the circumstances under which Ext.P4 bill had to be issued. The additional connected load of 9 KW, that had been sanctioned on 30.03.2009, had **W.P(c) No.33282 of 2011-I** 6 been omitted to be billed. It was the said mistake that was sought to be rectified by the issue of Ext.P4. It is not such a situation that had come up for consideration before this Court in **Jomy Thomas Manjooran v. K.S.E.B** (supra). The question that had come up before the learned Single Judge in the said decision was whether the assessing authority under Section 126 of the Electricity Act had the power to reopen and enhance an assessment made under the said provision. In the present case it is not in dispute that Ext.P4 bill is only a short assessment bill. The learned counsel for the petitioner points out that an amount of Rs.18,893/- has been charged as penalty. On the electricity charge also, an amount of Rs.1,600/-, two times the normal charges, has been billed, by way of penalty. Such charges cannot be demanded according to the counsel. 8. The learned counsel for the respondents on the other hand contends that the said amounts mentioned in Para.5 of the counter affidavit show that they have been charged in respect of the unauthorised connected load of **W.P(c) No.33282 of 2011-I** 7 4 KW that was detected by the APTS when the premises was inspected on 18.11.2008. Since the said unauthorised connected load has not been regularised so far, penal charges have been demanded in respect of the same. Therefore, according to the counsel, it is for the petitioner to take necessary steps to regularise the said unauthorised connected load or to remove the same. 9. A perusal of the disputed bill Ext.P4 shows that an amount of Rs.29,500/- has been charged as fixed charges. Energy charges of 18,893/- has also been charged. 10. A scrutiny of the calculation statement in the counter affidavit shows that, penal charges for 4 KW has been charged for the period from February, 2009 to March, 2009. The penal charges come to a total amount of Rs.20,493/-. The said amount cannot be charged in view of the dictum in the decision referred to above. Therefore, Ext.P4 is not sustainable. Therefore, Ext.P4 is set aside. The respondents shall be at liberty to compute the charges due from the petitioner for the additional connected load **W.P(c) No.33282 of 2011-I** 8 that was omitted to be billed, afresh and to serve a fresh bill on the petitioner for the period from 30.03.2009 to October, 2011. The bill shall also give credit for the amount that the petitioner has already paid as a condition for reconnection pursuant to the interim order granted by this Court. In view of the above, this Writ Petition is disposed of as follows: i) Ext.P4 is set aside; ii) The respondents shall be at liberty to prepare and serve a fresh bill on the petitioner for the period from 30.03.2009 to October, 2011 for the additional connected load of 9 KW that was sanctioned and omitted to be billed. Due credit shall be given for the payments that the petitioner has already made. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/