CKK Nair Containers v. Kerala State Electricity Board Ltd & Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944`** ``` WP(C) NO. 3576 OF 2023 ``` ## **`PETITIONER/S:`** ``` CKK NAIR CONTAINERS AGED 50 YEARS PLOT NO.36B, 37A, 37B, MAJOR INDUSTRIAL ESTATE, SOUTH KALAMASSERY, ERNAKULAM, PIN - 683104, REPRESENTED BY ITS MANAGING PARTNER, BIJU K NAIR. BY ADV ARUN THOMAS ``` ## **`RESPONDENT/S:`** ``` 1KERALA STATE ELECTRICITY BOARD LTD VYDHYUDHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695004, REPRESENTED BY ITS MANAGING DIRECTOR 2THE EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL DIVISION, ALUVA, ERNAKULAM DISTRICT - 683101 3THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL SUB DIVISION, KALAMASSERY, HMT COLONY P.O., ERNAKULAM DISTRICT- 683503 4THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL SECTION, KALAMASSERY, HMT COLONY P.O., ERNAKULAM DISTRICT- 683503 SRI RIJI RAJENDRAN SC, SRI TR RENJITH SR GP THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON02.02.2023,THECOURTONTHESAMEDAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 3576 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** C.K.K. Nair Containers is a partnership firm engaged in the manufacture of containers and drums. For the conduct of their business, they have obtained a High Tension (HT) electricity connection from the Electrical Section, Kalamassery. 2. On 19.10.2022, the Anti-Theft Power Squad (ATPS) conducted a surprise inspection of the petitioner's premises and, upon detecting additional connected load, concluded that the petitioner had engaged in unauthorized energy extraction. 3. To Ext.P2 provisional assessment order prepared on the strength of Ext.P1 mahazar by the ATPS, the petitioner has filed Ext.P3 detailed objection. According to the petitioner, without considering the objections, the 3rd respondent has now issued Ext.P8 final assessment order confirming the provisional assessment order. 4. The petitioner contends that the final assessment order is illegal and arbitrary. It is contended that the ATPS has failed to follow the mandate of Section 126(1) of the Electricity Act. The ATPS was required to minutely note the machinery which were connected and functioning in the premises, but instead, they simply noted the machinery which were included in the scheme of expansion submitted by the petitioner before the Board. In this writ petition, the petitioner seek to quash Exts.P1, P2, ``` WP(C) NO. 3576 OF 2023 ``` ``` 3 ``` P8 and P9 and for a further direction to the respondents to permit the petitioner to prefer a statutory appeal before the Kerala State Electricity Appellate Authority after paying 50% of the fixed charges/demand charges imposed by the 4th respondent. 5. On instructions, Sri. Riji Rajendran, the learned Standing Counsel appearing for the respondents, submitted that the Hon'ble Supreme Court in **Kerala State Electricity Board and Ors. v. Thomas** **Joseph and Ors.** [2022 SCC Online SC 1737], after interpreting section 45(3)(a) of the Electricity act, 2003, has held that charges for electricity supplied by a distribution licensee include fixed charges in addition to the charges for the actual electricity supplied and consumed. He points out that the Tariff includes both fixed charges and energy charges, and once the assessing officer arrives at a conclusion that the unauthorized use of electricity has taken place, he is obliged to make the assessment charge equal to twice the tariff applicable, which includes the dues payable towards the energy charges as well. The Hon’ble Supreme Court has also concluded that Regulation 153(15) of the Electricity Supply Code, 2014, is inconsistent with the provisions of Section 126 of the Electricity Act, 2003, and is to be declared invalid. The learned counsel would also refer to the observations made by the Hon’ble Supreme Court in **Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco), and Anr. v. Sri Seetaram Rice Mill** [(2012) 2 SCC 108], ``` WP(C) NO. 3576 OF 2023 ``` ``` 4 ``` and it is argued that it is for the petitioner to prefer an appeal by remitting 50% of the assessed amount, and this Court will not be justified in interfering under Article 226 of the Constitution of India. 6. I have considered the submissions advanced. 7. Though Sri. Arun Thomas, the learned counsel appearing for the petitioner, has with much vehemence persuaded this Court to entertain this writ petition, I am of the considered opinion that in view of the observations made by the Apex Court in **Seetaram** (supra), the petitioner will have to avail the statutory remedy. As held by the Apex court in **Radha Krishan Industries v. State of Himachal Pradesh** [AIR 2021 SC 2144], when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience, and discretion. 8. The learned counsel at this stage would refer to the judgment rendered by a learned Single Judge of this Court in Judgment dated 30.12.2022 in W.P.(C.) No. 42951/2022 and submit that the petitioner be permitted to deposit 50% of the fixed charge while availing the statutory remedy. Section 127 (2) states that no appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by ``` WP(C) NO. 3576 OF 2023 ``` ``` 5 ``` demand draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal. I am afraid that the request of Sri. Arun Thomas, the learned counsel, cannot be acceded to as it would go against the law declared by the Hon’ble Supreme Court in **Thomas Joseph** (supra). The Apex Court had held that a plain reading of section 45(3)(a) of the Act 2003 would indicate that the charges for electricity certified by a distribution licensee include the fixed charges, in addition to the charges for the actual electricity supplied and consumed. In such circumstances, the tariff would include both fixed charges and energy charges, and once the assessing officer arrives at the conclusion that the unauthorized use of electricity has taken place, he is obliged to make the assessment charge equal to twice the tariff applicable, which includes the dues payable towards the energy charges as well. Having considered the entire facts, I am of the view that the petitioner can be relegated to the statutory remedy available to them under Section 127 of the Act. In that view of the matter, this writ petition is ordered by issuing the following directions: (i) it would be open to the petitioner to mount a challenge against the order impugned before the Kerala State Electricity Appellate Authority, which shall be done within a period of four weeks from today. ``` WP(C) NO. 3576 OF 2023 ``` ``` 6 ``` (ii) To enable the petitioner to prefer an appeal as ordered above, coercive proceedings proposed against them shall be deferred for a period of four weeks. This writ petition is disposed of. # Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 3576 OF 2023 ``` ``` 7 ``` ## **`APPENDIX OF WP(C) 3576/2023`** ## **`PETITIONER EXHIBITS`** |`Exhibit P1`|`TRUE COPY OF THE MAHASAR DATED 19-10-2022`| |---|---| ||`PREPARED BY ANTI POWER THEFT SQUAD RELATING TO`| ||`THE PREMISES OF THE PETITIONER.`| |`Exhibit P2`|`TRUE COPY OF THE PROVISIONAL ASSESSMENT DATED`| ||`29/10/2022 ALONG WITH THE CALCULATION STATEMENT.`| |`Exhibit P3`|`TRUE COPY OF THE OBJECTION DATED 10/11/2022`| ||`SUBMITTED BY THE PETITIONER BEFORE THE ASSESSING`| ||`OFFICER.`| |`Exhibit P4`|`TRUE COPY OF THE PROCEEDINGS DATED 11-3-2019`| ||`ISSUED BY THE DEPUTY CHIEF ENGINEER, ELECTRICAL`| ||`CIRCLE, PERUMBAVOOR.`| |`Exhibit P5`|`TRUE COPY OF THE LETTER DATED 31-01-2020 SEN BY`| ||`ASSISTANT ENGINEER, ELECTRICAL SECTION ANGAMALY`| ||`TO THE EXECUTIVE ENGINEER, TMR DIVISION,`| ||`ANGAMALY AND THE RECEIPT ISSUED BY THE BOARD FOR`| ||`THE TESTING FEES.`| |`Exhibit P6`|`TRUE COPY OF THE COMMUNICATION DATED 23-3-2020`| ||`ISSUED BY THE DEPUTY CHIEF ENGINEER, ELECTRICAL`| ||`CIRCLE, PERUMBAVOOR.`| |`Exhibit P7`|`TRUE COPY OF THE APPLICATION DATED 5-11-2021`| ||`SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY`| ||`CHIEF ENGINEER, KSEB.`| |`Exhibit P8`|`TRUE COPY OF THE PROCEEDINGS DATED 27-12-2022`| ||`BEARING NO-ESD-KLSY/HT CONS. NO.(LCN-6/5694)/162`| ||`ALONG WITH THE CALCULATION STATEMENT ISSUED BY`| ||`THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB`| ||`DIVISION, KALAMASSERY`| |`Exhibit P9`|`TRUE COPY OF THE COVERING LETTER DATED`| ||`21-01-2023 ALONG WITH THE FINAL INVOICE ISSUED`| ||`BY THE BOARD.`| ``` WP(C) NO. 3576 OF 2023 ``` ``` 8 ``` ``` Exhibit P10TRUE COPY OF THE BOARD ORDER NO.BO (FB) N0. 2518/2013(KSEB/TRAC/S CODE/R2/2009) DATED 28.11.2013 AND RELEVANT PAGES OF THE ANNEXURE. Exhibit1 P11TRUE COPY OF THE BOARD ORDER DATED 5/05/2016 Exhibit P12TRUE COPY OF THE JUDGMENT DATED 30-12-2022 IN WP-42951/2022 OF THIS HON'BLE COURT ```