Baiju N.K. v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE B.P.RAY WEDNESDAY, THE 22ND DAY OF FEBRUARY 2012/3RD PHALGUNA 1933 WP(C).No. 5695 of 2010 (J) -------------------------- PETITIONER: ------------- BAIJU N.K., S/O.LAKSHMANAN, AGED 38 YEARS, MARUKKALATHIL HOUSE, PROPRIETOR, HOTEL, M/S.SREEKRISHNA INTERNATIONAL, VATAKARA, KOZHIKODE DISTRICT, KERALA STATE. BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: ----------------- 1. THE KERALA STATE ELECTRICITY BOARD, THE SECRETARY, KERALA STATE ELECTRICITY BOARD TRIVANDRUM. 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD VATAKARA. 3. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, VATAKARA. BY SRI.P.P.THAJUDEEN, SC, K.S.E.B SRI.C.K.KARUNAKARAN, SC, KSEB SRI. K.M. SATHYANATHA MENON, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5695 of 2010 (J) ## : 2 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : TRUE COPY OF THE INVOICE. EXT.P2 : TRUE COPY OF THE LETTER EXPLAINING EXT.P1 INVOICE AS ONE ON ACCOUNT OF EXCEEDING CONNECTED LOAD AGREED TO.** - **EXT.P3 : TRUE COPY OF THE INVOICE DATED 16.05.1999 FOR THE PERIOD 10/2008 UP TO THE DATE OF INVOICE** - **EXT.P4 : TRUE COPY OF THE CORRESPONDING INVOICE FOR THE PERIOD 6/2009 DATED 05.06.2009.** - **EXT.P5 : TRUE COPY OF THE INVOICE DATED 05.08.2009 FOR PAYMENT OF FIXED CHARGES OF RS.10,000/- FOR TWO MONTHS.** - **EXT.P6 : TRUE COPY OF THE INVOICE DATED 05.09.2009 FOR RS.5000/- AS FIXED CHARGES.** - **EXT.P7 :** TRUE COPY OF THE INVOICE DATED 05.11.2009 DIRECTING PAYMENT OF FIXED CHARGES FOR RS.5000/-. - **EXT.P8 : TRUE COPY OF THE CORRESPONDING INVOICE DATED 05.12.2009 DIRECTING PAYMENT OF FIXED CHARGES.** - **EXT.P9 : TRUE COPY OF THE CORRESPONDING INVOICE DATED 05.01.2010 FOR PAYMENT OF FIXED CHARGES OF RS.5000/-.** - **EXT.P10 : TRUE COPY OF THE CORRESPONDING INVOICE DATED 05.02.2010.** - **EXT.P11 : TRUE COPY OF THE ORDER IN APPEAL BY THE 2ND RESPONDENT.** - **EXT.P12 : TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF RS.2,42,915.** ## **RESPONDENTS' EXHIBITS:** - **EXT.R3(a) : PHOTOCOPY OF THE CALCULATION STATEMENT ISSUED TO THE PETITIONER.** - **EXT.R3(b) : PHOTOCOPY OF THE SITE MAHAZAR PREPARED BY THE ANTI POWER THEFT SQUAD.** - **EXT.R3(c) : PHOTOCOPY OF THE NOTICE ISSUED TO THE PETITIONER.** - **EXT.R3(d) : PHOTOCOPY OF THE BOARD ORDER NO.(FM) NO. 368/2008(DPC1/C-G1/182/2007) DATED 07.02.2008.** **//TRUE COPY//** **P.A. TO JUDGE** . rv ## **B.P. RAY, J.** **- - - - - - - - - - - - - - - - - W.P.(C) No. 5695 of 2010** **- - - - - - - - - - - - - - - -** ## **Dated this the 22[nd] day of February, 2012.** ## **JUDGMENT** Heard the learned counsel for the petitioner and the learned standing counsel for the Kerala State Electricity Board. 2. The issue involved in this case is squarely covered by the decision in Executive Engineer and another v. Sitaram Rice Mill reported in (2010 (4) KHC 1) wherein the Apex Court in paragraphs 44 and 46 held as follows: “44. Minimum energy charges are to be levied with reference to 'contract demand' at the rate prescribed under the terms and conditions. These clauses of the agreement clearly show that the charges for consumption of electricity are directly relatable to the sanctioned/connected load and also the load consumed at a given point of time if it is in excess of the sanctioned/connected load. The respondent could consume electricity upto 110 KVA but if the connected load exceeded that higher limit, the category of the respondent itself could stand changed from 'medium industry' which will be governed by a higher tariff. 45. xxxxx 46. On the cumulative reading of the terms and conditions of supply, the contract executed between the parties and the provisions of the 2003 Act, we have no hesitation in holding that consumption of electricity in excess of the sanctioned/connected load shall be an 'unauthorised use' of electricity in terms of Section 126 of the 2003 Act. W.P.(C) No. 5695/2010 -:2:- This, we also say for the reason that overdrawal of electricity amounts to breach of the terms and conditions of the contract and the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations. In somewhat similar circumstances, where the consumer had been found to be drawing electricity in excess of contracted load and the general conditions of supply of electricity energy by the Board and Clause 31(f) of the same empowered the Board to disconnect supply and even levy higher charges as per the tariff applicable, this Court held that such higher tariff charges could be recovered. While noticing the prejudice caused, the Court in the case Bhilari Rerollers and others v. M.P.Electricity Board and others (2003 KHC 1521 : 2003 (7) SCC 185 : JT 2003 (7) SC 215), held as under: “21. The respondent Board, therefore, is entitled to raise the demand under challenge since such right has been specifically provided for and is part of the conditions for supply and particularly when such drawal of extra load in excess of the contracted load is bound to throw out of gear the entire supply system undermining its efficiency, efficacy not only causing stress on the installations of the Board but considerably affect other consumers who will experience voltage fluctuations. Consequently, we see no merit in the challenge made on behalf of the appellants. The appeals, therefore, fail and shall stand dismissed but with no costs.” ## 3. In that view of the authoritative pronouncement of the Apex Court, I set aside the order of the assessing authority as well as the appellate authority and remit the matter to the assessing officer to dispose of the same in accordance with the judgment referred above. W.P.(C) No. 5695/2010 -:3:- Learned counsel for the petitioner submits that no penalty can be levied under Section 126 of the Electricity Act, 2003. The assessing authority, while considering the matter, shall take into consideration all the observations of the State Electricity Regulatory Commission in D.P.75/2009 dated 19.1.2010 and the judgment of the Apex Court and decide the question afresh after giving the petitioner an opportunity of being heard. The entire exercise shall be completed within a period of two months from the date of receipt of a copy of this judgment subject to the condition that, as agreed, the petitioner deposits 50% of the demand within one month. Amount, if any, paid or deposited shall be given credit to. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 20.3.2012. It is open to the petitioner to raise all relevant points before the assessing authority, if so advised. Writ petition is disposed of as above. **sd/- B.P. RAY, JUDGE.** rv W.P.(C) No. 5695/2010 -:4:- **B.P. RAY, J.** ----------------------------------------------------------- **O.P.No. 13887 of 2002** W.P.(C) No. 5695/2010 -:5:- ------------------------------------------------------------Dated this the 17[th] day of February, 2012. **JUDGMENT**