Kerala State Electricity Board Ltd. v. Arun R. Chandran & Indus Towers Ltd. & Kerala State Electricity Appellate Authority

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** ## **WP(C).No.20852 OF 2019(F)** ## **PETITIONER/S:** **THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB LTD., VATTIYOORKKAVU, THIRUVANANTHAPURAM.** **BY ADV. SRI.S.SHYAM KUMAR** ## **RESPONDENT/S:** **1 ARUN R.CHANDRAN ENERGY HEAD, INDUS TOWERS LTD., 8TH FLOOR, VANKARATH TOWER, N.H BYE PASS, PADIVATTOM, KOCHI-682 014. 2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY CC 51/52, NEAR 110 KV SUB STATION, VYTTILA, KOCHI-682 019.** **OTHER PRESENT:** **SRI BIMAL K NATH - SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, ALONG WITH WP(C).20859/2019(F), WP(C).20861/2019(G), Con.Case(C).1254/2019, Con.Case(C).1395/2019, Con.Case(C).1399/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20852 OF 2019 & conn.cases** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** **WP(C).No.20859 OF 2019(F)** ## **PETITIONER/S:** **THE KERALA STATE ELECTRICITY BOARD LTD, REPRESENTED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB LTD., VATTIYOOKKAVU, THIRUVANANTHAPURAM.** **BY ADV. SRI.S.SHYAM KUMAR** ## **RESPONDENT/S:** **1 ARUN R CHANDRAN ENGERGY HEAD, IDUS TOWERS LTD., 8TH FLOOR, VANKARATH TOWER, N.H. BYE PASS, PADIVATTOM, KOCHI - 682014. 2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, CC 51/52, NEAR 110KV SUB STATION, VYTILLA, KOCHI-682019.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, ALONG WITH WP(C).20852/2019(F), WP(C).20861/2019(G), Con.Case(C).1254/2019, Con.Case(C).1395/2019, Con.Case(C).1399/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20852 OF 2019 & conn.cases** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** **WP(C).No.20861 OF 2019(G)** ## **PETITIONER/S:** **THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB LTD, VATTIYOORKKAVU, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.S.SHYAM KUMAR** ## **RESPONDENT/S:** **1 ARUN R.CHANDRAN ENERGY HEAD, INDUS TOWERS LTD, 8TH FLOOR, VANKARATH TOWER, N.H BYE PASS, PADIVATTOM, KOCHI-682014.** **2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, CC 51/52, NEAR 110KV SUB STATION, KOCHI-682019.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, ALONG WITH WP(C).20852/2019(F), WP(C).20859/2019(F), Con.Case(C).1254/2019, Con.Case(C).1395/2019, Con.Case(C).1399/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20852 OF 2019 & conn.cases** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** **Con.Case(C).No.1254 OF 2019 IN WP(C). 41236/2018** **AGAINST THE ORDER/JUDGMENT IN WP(C) 41236/2018(D) OF HIGH COURT OF KERALA** ## **PETITIONER/S:** **M/S. INDUS TOWERS LIMITED VANKARATH TOWER, 8TH FLOOR, N.H.BYEPASS, PALARIVATTOM, KOCHI24, REPRESENTED BY ITS DULY AUTHORIZED REPRESENTATIVE RAJKUMAR PAVOTHIL, HEAD LEGAL.** **BY ADVS. SRI.P.SATHISAN SMT.ROHINI S KUMAR** ## **RESPONDENT/S:** **MR.KRISHNAN KUMAR NAIR,** **THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD LTD., VATTIYOORKAVU, THIRUVANANTHAPURAM-695 013, RESIDING AT CHANDRA BHAVAN, TC 2/3065 B-87, MANGANOORKOONAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004.** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, ALONG WITH WP(C).20852/2019(F), WP(C).20859/2019(F), WP(C).20861/2019(G), Con.Case(C).1395/2019, Con.Case(C).1399/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20852 OF 2019 & conn.cases** **5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** **Con.Case(C).No.1395 OF 2019 IN WP(C). 41324/2018** **AGAINST THE ORDER/JUDGMENT IN WP(C) 41324/2018(M) OF HIGH COURT OF KERALA** ## **PETITIONER/S:** **M/S.INDUS TOWERS LIMITED, VANKARATH TOWER,8TH FLOOR,N.H.BYEPASS, PALARIVATTOM,KOCHI-24,REPRESENTED BY ITS DULY AUTHORIZED REPRESENTATIVE AND HEAD LEGAL,RAJKUMAR PAVOTHIL,S/O.P.NARENDRAN, AGED 42 YEARS.** **BY ADVS. SRI.P.SATHISAN SMT.ROHINI S KUMAR** ## **RESPONDENT/S:** ## **KRISHNAN KUMAR NAIR,** **THE ASSISTANT ENGINEER,ELECTRICAL SECTION,KERALA STATE ELECTRICITY BOARD LTD,VATTIYOORKAVU,THIRUVANANTHAPURAM695013,AGED-NOT KNOWNTO THE PETITIONER,S/O.NOT KNOWN TO THE PETITIONER,RESIDING AT CHANDRA BHAVAN, TC 2/3065 B-87,MANGANOORKOONAM,PATTOM PALACE.P.O,THIRUVANANTHAPURAM-695004.** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, ALONG WITH WP(C).20852/2019(F), WP(C).20859/2019(F), WP(C).20861/2019(G), Con.Case(C).1254/2019, Con.Case(C).1399/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20852 OF 2019 & conn.cases** **6** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** **Con.Case(C).No.1399 OF 2019 IN WP(C). 41449/2018** **AGAINST THE ORDER/JUDGMENT IN WP(C) 41449/2018(E) OF HIGH COURT OF KERALA** **PETITIONER/S: M/S.INDUS TOWERS LIMITED, VANKARATH TOWER, 8TH FLOOR, N.H BYEPASS, PALARIVATTOM, KOCHI24, REPRESENTED BY ITS DUTY AUTHORIZED REPRESENTATIVE, RAJKUMAR PAVOTHIL, HEAD LEGAL.** **BY ADV. SRI.P.SATHISAN RESPONDENT/S: MR.KRISHNAN KUMAR NAIR, THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD LTD., VATTIYOORKAVU, THIRUVANANTHAPURAM695013, AGED NOT KNOWN TO THE PETITIONER, S/O. NOT KNOWN TO THE PETITIONER, RESIDING AT CHANDRA BHAVAN, TC 2/3065 B-87, MANGANOORKOONAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM- 695004.** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, ALONG WITH WP(C).20852/2019(F), WP(C).20859/2019(F), WP(C).20861/2019(G), Con.Case(C).1254/2019, Con.Case(C).1395/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20852 OF 2019 & conn.cases** **7** ## **J U D G M E N T** Three among the cases I am considering in this judgment are writ petitions filed by the Kerala State Electricity Board (KSEB for short) challenging the orders issued by the Kerala State Electricity Appellate Authority (Appellate Authority for short), in the appeals filed by a company by name Indus Towers Limited; while the three others are contempt applications filed by the said company alleging that the directions of this Court, in an earlier round of litigation, whereby the KSEB had been ordered to implement the afore mentioned orders of the Electricity Appellate Authority have been violated. 2. I have heard the learned counsel appearing for the KSEB in W.P.(C)Nos.20859/2019, 20861/2019, 20852/2019 and Sri.P.Sathisan, learned counsel appearing for the petitioner in C.O. (C)Nos.1254/2019, 1395/2019, 1399/2019. 3. The challenge of the KSEB has been impelled against the orders of the Appellate Authority, essentially on the ground that they were neither heard nor given an opportunity of placing their version before the said Authority. According to the KSEB, before the Appellate Authority could have granted any relief to Indus Towers Limited, it ought to have considered whether the **WP(C).No.20852 OF 2019 & conn.cases** **8** upgradation of the existing distribution system or enhancement of the voltage capacity had become necessary on account of the regularization of the unauthorized additional load consumed by the said company. He asserts that the Appellate Authority had neither given them an opportunity of being heard nor was this issue considered, in any manner, in the impugned orders. The learned counsel, therefore, prays that the orders impugned in W.P. (C)Nos.20859/2019, 20861/2019, 20852/2019 be set aside. 4. Sri.P.Sathisan, learned counsel appearing for Indus Towers Limited, submits that these writ petitions have been filed by the KSEB only as an after-thought, solely because his clients have approached this Court through the afore mentioned C.O.(C)s. He says that Indus Towers Limited had earlier approached this Court and obtained judgments, the copies of which have been produced as Annexure - A1 in all the afore Contempt of Courts Cases, whereby, they have been directed to implement the orders of the Appellate Authority, which has now persuaded them to challenge the said orders in the above writ petitions. He says that these writ petitions are, therefore, not maintainable and that, in any event of the matter, the orders of the Appellate Authority cannot be questioned by the KSEB on the grounds as raised therein. **WP(C).No.20852 OF 2019 & conn.cases** **9** 5. I have considered the afore submissions and I have also examined the earlier judgments of this Court. There can be no doubt that this Court had, in the earlier judgments, found that unless the KSEB challenges the orders of the Electricity Appellate Authority appropriately, they cannot take a stand that they are not bound by the same or that they will not comply with the directions therein. It is in that perspective that I had allowed the writ petitions filed by Indus Towers Limited and had consequently, directed the KSEB to implement the orders of the Appellate Authority, of course, without prejudice to their rights to challenge the same in terms of law. It is this liberty, which has now been used by the KSEB in filing W.P.(C)Nos.20859/2019, 20861/2019, 20852/2019 and I cannot, therefore, find these writ petitions to be not maintainable. 6. That said, the singular contention of the KSEB against the orders impugned in the writ petitions is that the Appellate Authority had not considered the question whether, while regularizing the unauthorized load, there is any requirement for upgradation of the existing distribution system or enhancement of the voltage capacity. These submissions have been made specifically with reference to the judgment of a Division Bench of **WP(C).No.20852 OF 2019 & conn.cases** **10** this Court in **Sulabha Marketing (P) Ltd v. Kerala State Electricity Board** ((2017) 4 KHC 563), wherein, it has been declared unequivocally that except in such contingency, a consumer can be billed only double the fixed charges and not the consumption charges. This certainly, therefore, is an issue that was relevant before the Appellate Authority, but I am also aware that the said Authority has found in the impugned orders that neither has the KSEB mentioned the requirement of enhancement of the voltage capacity or upgradation of the distribution system in their provisional assessment nor had they taken that contention before him, they being admittedly absent. Obviously, therefore, at first blush, the orders impugned by the KSEB cannot be found to be at fault, since the KSEB ought to have presented themselves for the enquiry at the time when the appeals were heard. That said, however, since this is an issue that is essentially in the domain of facts, it is not something that this Court can enter into or conclude upon affirmatively, while acting under Article 226 of the Constitution of India. 7. That apart, **Sulabha Marketing** (supra), had been delivered much after the KSEB had made the provisional assessments involved in these cases and resultantly **,** I find favour **WP(C).No.20852 OF 2019 & conn.cases** **11** with the submissions of the learned standing counsel for the KSEB that the provisional assessment order did not contain these aspects specifically since, at that relevant time, it was thought that the consumer was in any case, obligated to pay double the fixed charges and the consumption charges notwithstanding whether there is any requirement for enhancement of voltage capacity or upgradation of the distribution system. I therefore, feel that the learned standing counsel is justified in his submission to that extent that since **Sulabha Marketing (supra),** having come later, its rigour cannot be applied retroactively with respect to the provisional assessments involved in these cases. 8. In the afore perspective, I deem it appropriate to grant a limited latitude to the KSEB to establish this issue also before the Appellate Authority; for which purpose, I deem it appropriate to remit the matter to the said Authority for a fresh consideration on this sole issue. 9. Resultantly, W.P.(C)Nos.20859/2019, 20861/2019, 20852/2019 are allowed and the orders impugned therein are set aside, however, only to the limited extent as to whether the ratio in **Sulabha Marketing** (supra) would be applicable; and consequently, the Appellate Authority will grant one more **WP(C).No.20852 OF 2019 & conn.cases** **12** opportunity to the KSEB to establish that on account of the unauthorized load involved in these cases, there is requirement for enhancement of voltage capacity or upgradation of the distribution system and a decision thereon shall be taken by the Appellate Authority in terms of law after affording necessary opportunity of being heard to both sides. This exercise shall be completed by the Appellate Authority as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Axiomatically, as a corollary result, C.O.(C)Nos.1254/2019, 1395/2019, 1399/2019 will stand closed; however, granting full liberty to the petitioners to approach this Court again, if so required in future, after the afore exercise is completed by the Appellate Authority. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** rp **WP(C).No.20852 OF 2019 & conn.cases** **13** ## **APPENDIX OF WP(C) 20852/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PROVISIONAL ASSESSMENT BILL DATED 20.3.2010. EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 7.4.2010 IN WPC NO.12239 OF 2010. EXHIBIT P3 A TRUE COPY OF THE FINAL ASSESSMENT BILL ISSUED BY THE PETITIONER DATED 29.6.2017. EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM. EXHIBIT P5 A TRUE COPY OF THE STATEMENT FILED BY THE IST PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE ORDER PASSED BY THE APPELLATE AUTHORITY DATED 30.8.2017 IN APPEAL NO.169 OF 2017.** **WP(C).No.20852 OF 2019 & conn.cases** **14** ## **APPENDIX OF WP(C) 20859/2019** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE PROVISIONAL ASSESSMENT BILL DATED 07.10.2009. EXHIBIT P2 A TRUE COPY OF THE JUDGMETN DATED 16.08.2012 IN WPC NO. 4815 OF 2010 EXHIBIT P3 A TRUE COPY OF THE FINAL ASSESSMENT BILL ISSUED BY THE PETITIOEN DATED 29.06.2017. EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM. EXHIBIT P5 A TRUE COPY RELEVANT PAGES OF THE STATMENT FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P6 A TRUE COPY OF THE ORDER PASSED BY THE APPELLATE AUTHORITY DATED 30.08.2017 IN APPEAL NO.168/2017.** **WP(C).No.20852 OF 2019 & conn.cases** **15** ## **APPENDIX OF WP(C) 20861/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PROVISIONAL ASSESSMENT BILL DATED 31.07.2009 EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 16.08.2012 IN W.P(C) NO.4815 OF 2010 EXHIBIT P3 A TRUE COPY OF THE FINAL ASSESSMENT BILL ISSUED BY THE PETITIONER DATED 29.06.2017 EXHIBIT P4 TUE COPY OF THE APPEAL MEMORANDUM EXHIBIT P5 A TRUE COPY OF THE STATEMENT FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P6 A TRUE COPY OF HT ORDER PASSED BY THE APPELLATE AUTHORITY DATED 30.08.2017 IN APPEAL NO.170 OF 2017** ' **WP(C).No.20852 OF 2019 & conn.cases** **16** ## **APPENDIX OF Con.Case(C) 1254/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE JUDGMENT DATED 18.12.2018 IN WPC NO.41236/2018 PASSED BY THIS HON'BLE COURT. ANNEXURE A2 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE CONTEMNOR BY NOTICE DATED 12.02.2019. ANNEXURE A3 TRUE COPY OF THE CONTEMPT NOTICE ISSUED BY THE PETITIONER TO CONTEMNOR DATED 01.06.2019 ALONG WITH POSTAL RECEIPT. ANNEXURE A3(A) TRUE COPY OF ACKNOWLEDGEMENT CARD TO ANNEXURE A3.** **WP(C).No.20852 OF 2019 & conn.cases** **17** ## **APPENDIX OF Con.Case(C) 1395/2019** |**PETITIONER'S/S EXHIBITS:**|| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE JUDGMENT DATED 19.12.2018 IN**| ||**W.P(C)NO.41324/2018**| |**ANNEXURE A2**|**TRUE COPY OF NOTICE DATED 12.02.2019**| |**ANNEXURE A3**|**TRUE COPY OF THE NOTICE DATED 30.05.2019**| |**ANNEXURE A3(A)**|**TRUE COPY OF THE POSTAL RECEIPT OF ANNEXURE.A3.**| **WP(C).No.20852 OF 2019 & conn.cases** **18** ## **APPENDIX OF Con.Case(C) 1399/2019** |**PETITIONER'S/S EXHIBITS:**|| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE JUDGMENT DATED 19.12.2018 IN**| ||**W.P.C NO.41449/2018.**| |**ANNEXURE A2**|**TRUE COPY OF NOTICE DATED 12.02.2019.**| |**ANNEXURE A3**|**TRUE COPY OF THE CONTEMPT NOTICE DATED**| ||**01.06.2019.**| |**ANNEXURE A3(A)**|**TRUE COPY OF ACKNOWLEDGMENT CARD TO ANNEXURE A3.**|