Dr. K Anilkumaar v. Kerala State Electricity Board Ltd & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH** **THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 WP(C) NO. 12160 OF 2024** ## **PETITIONER:** **DR.K ANILKUMAR, AGED 65 YEARS EXECUTIVE DIRECTOR, KERALA AYURVEDA LTD, ATHANI P.O, ERNAKULAM DISTRICT, PIN - 638535** **BY ADV JOSE J.MATHAIKAL** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD LTD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, PIN - 695004** - **2 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD LIMITED, ALUVA TOWN, ERNAKULAM DISTRICT, PIN - 683101** - **3 THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD LIMITED, ALUVA TOWN, ERNAKULAM DISTRICT, PIN - 683101** ## **OTHER PRESENT:** **SRI. B. PREMOD-SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 12160 OF 2024** 2 ## **Dated this the 1[st] day of August 2024** ## **J U D G M E N T** The present writ petition has been filed by the petitioner impugning Exts.P5 and P6 demand notices made by the respondent Board for interest on short period of the charges as per Section 126 of the Electricity Act, 2003 and the judgment of the Supreme Court in **Kerala State Electricity Board v. Thomas Joseph Alias Thomas** [2023 (1) SN (C.No.26) SC]. 2. The petitioner was assessed under Section 126 of the Electricity Act, 2003 and an assessment order was passed demanding twice the fixed charge and the energy charges, based on alleged unauthorized use of electricity by the petitioner as per the Board's regulations. 3. The petitioner, aggrieved by the said assessment order, filed appeal No.186 of 2017 and 187 of 2017 before the Kerala State Electricity Appellate Authority against the **WP(C) NO. 12160 OF 2024** 3 assessment orders issued under Section 126 of the Electricity Act, 2003. The appellate authority set aside the final assessment orders and directed the assessing authority to revise the assessment at twice the rate for the fixed charges only on account of the unauthorized additional load of the petitioner. The appellate authority relying on the decision of the Division Bench of this Court in **Sulabha Marketing (P) Ltd. v. Kerala State Elecricity Board, Thiruvananthapuram and Others [(2017) 4 KHC 563]** . 4. The Board, being aggrieved by the judgments of Writ Petition Nos.3224 of 2020 and 26155 of 2019, filed the appeals. The aforesaid two writ petitions were dismissed subject to the final outcome of the decision of the Honourable Supreme Court in the pending SLP against the judgment of the Division Bench of this Court in **Sulabha Marketing** (supra). The Court also granted liberty that if the issue is decided in favour of the Board, the Board will be at liberty to initiate appropriate proceedings to **WP(C) NO. 12160 OF 2024** 4 recover the amount in accordance with law. Thus, there was no other interdiction. 5. In compliance with the judgment passed by this Court in Writ Petition Nos..3224 of 2020 and 26155 of 2019 (T), the Board has refunded the excess amount to the petitioner in respect of the energy charges. 6. After the judgment of the Honourable Supreme Court in **Thomas Joseph** (supra), the respondent Board issued a notice to the petitioner for remitting the energy charges assessed under Section 126 of the Electricity Act along with interest. 7. The petitioner has remitted the charges as per the assessment orders issued by the assessing authority under Section 126 of the Electricity Act. However, they disputed the liability regarding payment of interest. The learned counsel for the petitioner submits that the petitioner had succeeded before the appellate authority and before this Court, wherein the petitioner was not liable to pay the energy charges under Section **WP(C) NO. 12160 OF 2024** 5 126 of the Electricity Act and only assessment was required to make for fixed charges. It is therefore submits that after the Honourable Supreme Court passed the judgment in the case of **Thomas Joseph** (supra), the petitioner now cannot be saddled with the liability of the interest. 8. On the other hand, Sri.B.Pramod, the learned Standing Counsel for the Board, submits that under Sub section 6 of Section 127 of the Electricity Act, the petitioner is liable to pay the statutory interest on the short payment made by him as per the assessment order. 9. The assessment order has been issued way back on 03.06.2017. The said assessment orders were challenged by the petitioner in the appeal, and the appellate authority set aside the assessment order with a direction to collect only fixed charges under Section 126 of the Electricity Act. In view thereof, the excess amount collected from the petitioner was refunded. 126 of the Electricity Act. The Board was not successful in **WP(C) NO. 12160 OF 2024** 6 challenging the appellate orders before this Court. However, the liberty was granted to the Board, depending on the outcome of the judgment in **Thomas Joseph** (supra), to collect the fixed charges. After the judgment of the Honourable Supreme Court in the year 2022, the petitioner is required to pay the interest on short payment of the energy charges. The appeals were decided on 25.09.2017 and in terms of the orders passed by the appellate authority, the petitioner was refunded the amount. The petitioner had paid the amount as per the assessment order. However, the question now is whether the petitioner is also liable to pay the interest in view of the aforesaid facts. 10. It is not the case that the petitioner did not pay the amount deliberately, but he did not pay the amount in view of the fact that the petitioner had succeeded before the appellate authority and before this Court. However, on the basis the Honourale Supreme Court's judgment, the petitioner cannot be saddled with the liability of the interest without his fault. **WP(C) NO. 12160 OF 2024** 7 Therefore, I am of the view that the petitioner is not liable to pay the interest on the short payment of the energy charges as per the assessment order. The petitioner had paid the energy charges as per the assessment orders; but the same was refunded to him in view of the order passed by the appellate authority and this Court. Hence, I find no justification for the demand of the interest from the petitioner in the impugned Exts.P5 and P6 and the same are hereby quashed. The writ petition stands allowed. Sd/- **DINESH KUMAR SINGH, JUDGE** AS **WP(C) NO. 12160 OF 2024** 8 ## **APPENDIX OF WP(C) 12160/2024** **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF ORDER DATED 25/9/2017 IN APPEAL NO 186 OF 2017 ISSUED BY THE STATE ELECTRICITY APPELLATE AUTHORITY** - **EXHIBIT P2 TRUE COPY OF ORDER DATED 25/9/2017 IN APPEAL NO 187 OF 2017 ISSUED BY THE STATE ELECTRICITY APPELLATE AUTHORITY** **EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 6/2/2020 IN WP(C) NO 3224 OF 2020** **EXHIBIT P4** - **TRUE COPY OF JUDGMENT DATED 1/10/2019 IN WP(C) NO 26155 OF 2019** **EXHIBIT P5 TRUE COPY OF NOTICE WITH CALCULATION SHEET DATED 12.12.2023 WITH RESPECT TO CONSUMER NO 1155677023137 ISSUED BY THE SECOND RESPONDENT** - **EXHIBIT P6 TRUE COPY OF NOTICE WITH CALCULATION SHEET DATED 12.12.2023 WITH RESPECT TO CONSUMER NO 1155677023138 ISSUED BY THE SECOND RESPONDENT** **EXHIBIT P7 TRUE COPY OF REPRESENTATION DATED 19.01.2024 WITH RESPECT TO CONSUMER NO 1155677023137 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT EXHIBIT P8 TRUE COPY OF REPRESENTATION DATED 19.01.2024 WITH RESPECT TO CONSUMER NO 1155677023138 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT**