Dr. P. P. Pathrose v. Kerala State Electricity Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 17TH DAY OF MARCH 2017 / 26TH PHALGUNA, 1938** **WP(C).No. 28545 of 2011** ## **PETITIONER(S)** **DR.P.P.PATHROSE, PARATHUVAYAL HOSPITAL,, KEEZHILLOM,ERNAKULAM DT.** **BY ADVS.SRI.J.JULIAN XAVIER** **SRI.FIROZ K.ROBIN** ## **RESPONDENT(S):** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY,, VYDHUTHI BHAVAN,PATTOM,, THIRUVANANTHAPURAM 695 004** **2. DEPUTY CHIEF ENGINEER,** **ELECTRICITY BOARD,, KSEB PERUMBAVOOR 683 542** **3. ASSISTANT ENGINEER,** **ELECTRICAL SECTION,, KSEB VALAYANCHIRANGARA,, ERNAKULAM 683 556** **R,R1-3 BY ADV. SMT.P.K.RADHIKA-KSEB** **R1-R3 BY ADV. SRI.N.RAPHY RAJ, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 28545 of 2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1 TRUE COPY OF THE MAHAZAR DATED 27.4.2011 EXT.P2 TRUE COPY OF THE DEMAND DATED 28.4.2011 ISSUED BY THE 3RD RESPONDENT EXT.P3 TRUE COPY OF THE OBJECTION DATED 3.5.2011 EXT.P4 TRUE COPY OF THE PETITION DATED 6.5.2011 FILED BY THE PETITOINER BEFORE THE 3RD RESPONDENT EXT.P5 TRUE COPY OF THE PENAL BILL DATED 1.6.2011 EXT.P6 TRUE COPY OF THE APPEAL DATED 4.7.2011 EXT.P6(A) TRUE COPY OF THE RECEIPT DATED 9.6.2011 ISSUED BY THE 3RD RESPONDENT EXT.P7 TRUE COPY OF THE INTERIM ORDER DATED 26.8.2011 IN W.P.(C.) NO. 23231/2011 ISSUED BY THE THIRD RESPONDENT EXT.P8 TRUE COPY OF THE ORDER DATED 3.10.2011 ISSUED EXT.P9 TRUE COPY OF THE ORDER DATED 16.9.2011 IN TP NO 82/2010 RESPONDENT'S EXHIBITS : NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** ## **SKS** ## **MARY JOSEPH, J. ================== W.P.(C.) No. 28545 of 2011 ---------------------------------Dated this the 17[th ] day of March, 2017** ## **JUDGMENT** The writ petitioner is a consumer of electricity. Consumer No. 6109 was installed at the premises of building No. X/288 of Rayamangalam Grama Panchayat. The connection was given under LT VI B tariff with a sanctioned load of 44 KW. The premises is used as a Hospital. The charges of the electricity at the Hospital varies from Rs.40,000/- to Rs.45,000/- and the petitioner was regular in remitting the electricity charges. Therefore, arrears was not due to the KSEB. The APTS conducted an inspection at the premises on 27.4.2011 and found the meter as not working properly and the seals therein as intact. Therefore, alleging that unauthorised additional load to the tune of 57 KW than the sanctioned load was consumed at the premises of the petitioner, Ext. P1 mahazar was prepared. **W.P.(C.) No. 28545 of 2011** 2 2. Thereafter, a provisional bill was issued to the petitioner demanding a sum of Rs. 3,53,682/- as evidenced from Ext.P2. Alleging that the penalty imposed as per Ext.P2 includes not only fixed charges, but also the charges on consumed energy, an objection was filed by the petitioner before the 3[rd] respondent as evidenced by Ext.P3. A petition dated 06.05.2011 was also filed by the petitioner before the 3[rd] respondent as evidenced by Ext.P4. In Ext.P4 application, an x-ray machine was stated as installed at the Hospital. The consumption of power by the said machine was found as exceeding the sanctioned load. But it was connected to a generator and stating so, a separate chart was also filed, copy of which is Ext.P4(a), wherein it is alleged that the petitioner is intending to convert the LT connection into HT. 3. Thereafter, the 3[rd] respondent has issued a revised bill (final bill) on 01.06.2011 reducing the penalty from Rs. **W.P.(C.) No. 28545 of 2011** 3 3,53,682/- to Rs. 3,24,624/- as evidenced by Ext.P5. Challenging Ext.P5 final bill, the petitioner filed appeal before the 2[nd] respondent on 04.07.2011 as evidenced by Ext.P6. At the time of filing of the appeal, the petitioner has also remitted 50% of the amount demanded by Ext.P5, as evidenced by receipt produced as Ext. P6(a). 4. Thereafter, the 3[rd] respondent had issued bills for the month of May, 2011 and June, 2011. Ext.P6 appeal was considered by the 2[nd] respondent and rejecting the averments of the petitioner, Ext.P8 order was passed, which is under challenge in the writ petition on hand. The prayers of the writ petitioner are extracted hereinbelow : _“i) to call for the records connected with the case leading to Exts.P2, P5 and P8 and quash the same by issuing a writ of certiorari._ _ii) to declare that use of additional load is not a misuse to attract the penal provisions as contemplated under Section 126 of the_ ## **W.P.(C.) No. 28545 of 2011** 4 _Electricity Act, 2003 as amended by the Electricity(amendment) Act 2007 and also in the light of Ext.P9 order of the Kerala State Electricity Regulatory Commission and quash all the proceedings and actions taken against the petitioner by issuing a writ of certiorari._ _iii) Direct the 3[rd] respondent not to collect any energy charges from the petitioner till the payment made as per Ext.P6(a) receipt is fully adjusted._ _iv) stay all the proceedings pursuant to Ext.P8 pending disposal of the writ petitioner._ _v) To grant such other relief's that may be deemed just and proper by this Hon'ble Court.”_ 5. Sri.Firoz K.Robin, the learned counsel representing the writ petitioner and Sri.Harikrishnan, the learned Standing Counsel representing the respondents were heard in detail. 6. During the course of the arguments, Sri. Firoz K. Robin, the learned counsel for the petitioner submits that he does not intend to advance arguments on merits of the case, since the jurisdiction of the authority who had issued Ext.P8 has already been considered by a ## **W.P.(C.) No. 28545 of 2011** 5 Division Bench of this Court in **Muhammed Haji. v. Kerala State Electricity Board [2014 (3) KLT 706]** and held that authority is totally lacking. 7. According to the learned counsel, para 5 of the decision(Supra) is relevant in the context. Para 5 is extracted hereunder for reference : _“5. The language of the Rule 3 makes it clear that what is mandated is that the person or persons appointed as Appellate Authority as contemplated therein shall not be directly related to the territorial jurisdiction of the licencee or supplier of energy. This has been so done in order to ensure independence and impartiality of the Appellate Authority which are to hear the appeals filed against the orders of assessment passed by the officers of the Board in exercise of their powers under S.126 of the Act.”_ 8. Para 5 of the said decision is based on Rule 3 of the Appeal to the Appellate Authority Rules, 2004 (for short “the Rules”). Rule 3 of the Rules is extracted herein below for reference purpose. ## **W.P.(C.) No. 28545 of 2011** 6 _“State Electricity Second Transfer Scheme (Re-vesting), 2013 (Kerala), Cl.2(d)-Since the Deputy Chief Engineers continued to be related to the affairs of the licencee/supplier, inspite of constitution of strategic business unit, their designation as Appellate Authority, will be in contradiction to the mandate of R.3.”_ 9. It is provided in Rule 3 that, for the purpose of preferring appeal under Section 127 of the Electricity Act, 2003, an Appellate Authority will be constituted by the State Government by notification in the Official Gazette, consisting of one or more persons such that one of the persons shall have knowledge about matters relating to the assessment of electricity charges and none of them shall be directly related to the affairs of the territorial jurisdiction of the licencee or supplier of the electricity. 10. In the backdrop of Rule 3, Ext.P8 is perused. Ext.P8 was issued by the Deputy Chief Engineer (Electrical), Perumbavoor, who is a person coming within the purview of ## **W.P.(C.) No. 28545 of 2011** 7 the person, prohibited to be the part of the Appellate Authority. The Deputy Chief Engineer (Electrical Circle), Perumbavoor is a person within the territorial limits of the licencee and he is barred by Rule 3 to be an Appellate Authority. 11. Since Ext. P8 was issued by the Deputy Chief Engineer (Electrical Circle), Perumbavoor not empowered to act as the Appellate Authority, Ext.P8 is vitiated. The learned counsel has also invited my attention to the judgment of a Single Bench of this Court dated 13.10.2016 in W.P.(C). No. 30062/2007, wherein the dictum of the Division Bench referred to herein above is followed. 12. The learned counsel for the writ petitioner seeks for passing the same relief in the case on hand as ordered by the learned Single Judge in the said decision. Sri.Harikrishnan, the learned counsel representing ## **W.P.(C.) No. 28545 of 2011** 8 respondents 1 to 3 have conceded, in view of the dictum of the Division Bench in the decision cited (Supra) 13. In view of the aforesaid discussion, Ext. P8 will not sustain, as it was passed by an incompetent officer. In the result, the writ petition is allowed granting the following reliefs: 1) Ext.P8 order is set aside. 2) Writ petitioner is at liberty to file appeal before the competent Appellate Authority under Section 127 of the Electricity Act, 2003 within a period of 30 days from the date of receipt of a copy of this judgment. 3) On the filing of such an appeal, the Appellate Authority shall consider the same and pass appropriate orders. - 4) The amount already remitted by the writ petitioner - shall be adjusted towards 50% of the amount, which is to be **W.P.(C.) No. 28545 of 2011** 9 paid at the time of filing the appeal as stated hereinabove before the appropriate authority. sd/- **MARY JOSEPH JUDGE** SKS