High Court of KeralaSingle Judge2019-12-20Dismissed

KERALA STATE ELECTRICITY BOARD LTD. v. REJI MATHEW CHERIAN & OTHERS

Case / Petition Number:WP(C).Nos.35530/2019, 35537/2019, 35544/2019, 35546/2019, 35572/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Justice Anu Sivaraman
Judgment Date: 2019-12-20
Court Decision / Holding: The writ petitions are dismissed. The court leaves liberty to the Kerala State Electricity Board to act in accordance with any directions that may be issued by the Supreme Court in the pending Special Leave Petition.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

KERALA STATE ELECTRICITY BOARD LTD.
The Assistant Engineer, Electrical Section KSEB Ltd., Cheranalloor, Ernakulam District
KERALA STATE ELECTRICITY BOARD LTD., OTTAPPALAM, PALAKKAD DISTRICT
KERALA STATE ELECTRICITY BOARD LTD., OTTAPPALAM, Palakkad District (Padinjarangadi jurisdiction)
The Assistant Engineer, Electrical Section KSEB Ltd, Varkala, Thiruvananthapuram District
The Assistant Engineer, Electrical Section KSEB Ltd, Vellangallur, Thrissur

Respondents

Reji Mathew Cherian
KERALA STATE ELECTRICITY APPELLATE AUTHORITY
Padmakumar P.
Shamsudeen O.P. Onparambil
Fr. Vincent Valiyaparambil
Rashy S Indran

Legal Representation & Advocates

Counsels for Petitioners

• Adv. K. Janardhana Shenoy

Case Synopsis & Summary

The Kerala High Court heard five writ petitions filed by the Kerala State Electricity Board (KSEB) challenging the Kerala State Electricity Appellate Authority’s assessment orders related to unauthorised loads and tariff revisions. The petitions contest the Appellate Authority’s findings that no upgradation of the distribution system or enhancement of voltage level was required for the unauthorised load, arguing that such conclusions are incorrect. The court notes that the core issue concerns tariff for unauthorised loads and its alignment with established jurisprudence. It cites Sulabha Marketing (P) Ltd. v. Kerala State Electricity Board (2017) 4 KHC 563, a bench decision that governs tariff for such loads. While the KSEB contends that the Sulabha Marketing judgment is pending before the Supreme Court in a Special Leave Petition, the court refrains from deciding on those aspects, given the absence of detailed contentions on upgradation in the pleadings. The Division Bench of this Court in Sulabha Marketing had held that only double the fixed charges can be recovered, a proposition the court recognizes as binding. On the issue of assessment revision, the High Court sustains the Appellate Authority’s approach, concluding the petitions lack specific challenges and that the Sulabha Marketing ratio governs the case. Consequently, the court dismisses all five writ petitions, while granting KSEB liberty to act in accordance with any Supreme Court directions that may issue in the pending SLP.

Provisions of Law Cited

Electricity Act, Section 45(3)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that the unauthorised load will overburden the transformer and the existing distribution system, and contend that the Appellate Authority erred in concluding that no upgradation or voltage enhancement was necessary. They rely on the Electricity Act provisions and the Sulabha Marketing (P) Ltd v. Kerala State Electricity Board decision to challenge the scope of tariff computation, particularly the appropriateness of the proposed assessment revision being limited to twice the fixed charges.

Contentions of Respondents

The respondents contend that tariff for unauthorised loads is governed by the ratio laid down in Sulabha Marketing (P) Ltd v. Kerala State Electricity Board, and that the Appellate Authority correctly concluded that no mandatory upgradation was required for the unauthorised loads. They argue that the fixed-charge doubling principle has been consistently applied and that the petitions should be dismissed in light of the binding precedent, notwithstanding the pending Special Leave Petition before the Supreme Court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sulabha Marketing (P) Ltd v. Kerala State Electricity Board	(2017) 4 KHC 563	Positive	The court explicitly relies on this bench judgment to govern tariff for unauthorised loads and states that the issue is covered by Sulabha Marketing; the court even notes it as binding precedent.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against KERALA STATE ELECTRICITY BOARD LTD. v. REJI MATHEW CHERIAN & OTHERS and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** # **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** ## **WP(C).No.35530 OF 2019(M)** ## **PETITIONER** **KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB LTD., CHERANALLOOR, ERNAKULAM.** **BY ADV. SRI.K.JANARDHANA SHENOY** ## **RESPONDENTS** **1 REJI MATHEW CHERIAN M/S. CHERIAN VARKEY CONSTRUCTION COMPANY PVT.LTD., MOOLAMPILLY-PIZHALA BRIDGE SITE, MOOLAMPILLY, ERNAKULAM DISTRICT. 2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, CC 51/52, NEAR 110 KV SUB STATION, VYTILLA, KOCHI-682 019.** ## **OTHER PRESENT:** ## **SC N. SATHEESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2019, ALONG WITH WP(C)S.35537, 35544, 35546 & 35572 OF 2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** ## **WP(C).No.35537 OF 2019(N)** ## **PETITIONER** **THE ASSISTANT ENGINEER, ELECTRICAL SECTION KSEB LTD.,** **PADINJARANGADI, PALAKKAD DISTRICT.** **BY ADV. SRI.K.JANARDHANA SHENOY** ## **RESPONDENTS** **1 PADMAKUMAR P., MANGALATH HOUSE, ANGADI P.O., PALAKKAD DISTRICT.** **2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, CC 51/52, NEAR 110 KV SUB STATION, VYTILLA, KOCHI682 019.** ## **OTHER PRESENT:** ## **SC N. SATHEESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2019, ALONG WITH WP(C)S.35530, 35544, 35546 & 35572 OF 2019,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** ## **WP(C).No.35544 OF 2019(P)** ## **PETITIONER** **KERALA STATE ELECTRICITY BOARD LTD, REPRESENTED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB LTD., OTTAPPALAM, PALAKKAD DISTRICT.** **BY ADV. SRI.K.JANARDHANA SHENOY** ## **RESPONDENTS** **1 SHAMSUDEEN O.P. ONPARAMBIL, CHUNANGAD P.O., OTTAPPALAM, PALAKKAD DISTRICT- 679301. 2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, C C 51/52, NEAR 110KV SUB STATION, VYTILLA, KOCHI682019.** ## **OTHER PRESENT:** ## **SC N. SATHEESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2019, ALONG WITH WP(C)S.35530, 35537, 35546 & 35572 OF 2019,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 4 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** ## **WP(C).No.35546 OF 2019(P)** ## **PETITIONER** **KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB LTD., VARKALA, THIRUVANANTHAPURAM DISTRICT.** ## **BY ADV. SRI.K.JANARDHANA SHENOY** ## **RESPONDENTS** **1 FR. VINCENT VALIYAPARAMBIL DIRECTOR, HOLY INNOCENT PUBLIC SCHOOL, KALLUMALAKUNNU, VENNICODE (P.O), VARKALA, THIRUVANANTHAPURAM DISTRICT. 2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, C.C. 51/52, NEAR 110KV SUB STATION, VYTTILA, KOCHI682019.** ## **OTHER PRESENT:** ## **SC N SATHEESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2019, ALONG WITH WP(C)S.35530, 35537, 35544 & 35572 OF 2019,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** **WP(C).No.35572 OF 2019(V)** ## **PETITIONER** **THE ASSISTANT ENGINEER, ELECTRICAL SECTION KSEB LTD, VELLANGALLUR, THRISSUR** **BY ADV. SRI.K.JANARDHANA SHENOY** ## **RESPONDENTS** **1 RASHY S INDRAN MANAGER-LEGAL, KERALA CIRCLE, TOWER VISION INDIA (P) LTD, 2ND FLOOR, BCG ESTATE,NH BYPASS ROAD, PALARIVATTOM P.O., ERNAKULAM-682 025** **2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, C.C.51/52,NEAR 110 KV SUB STATION, VYTTILE,KOCHI682 019** ## **OTHER PRESENT:** ## **SC N SATHEESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2019, ALONG WITH WP(C)S.35530, 35537, 35544 & 35546 OF 2019,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 6 ## **JUDGMENT** - 1.The Kerala State Electricity Board (KSEB) Ext.P3 order of the Kerala State Electricity Appellate Authority ('the Appellate Authority' for brevity) on the ground that its findings regarding nonrequirement of up-gradation of the distribution system or enhancement of voltage level, in spite of unauthorised load being noticed is incorrect; and that the order to the extent to which it confines the revision of assessment at only twice the fixed charges, is contrary to Section 45(3) of the Electricity Act ('the Act' for brevity). - 2.I have examined the order impugned in these writ petitions, Ext.P3, and I am of the view that the issue relating to the charging of tariff in the case of unauthorised loads, not obtained by artificial means or in violation of the purpose for which it has been granted, is covered by a bench judgment of this Court in **Sulabha Marketing (P) Ltd v. Kerala State Electicity Board ((2017) 4 KHC 563)** . The learned Standing counsel for the KSEB of course, says that this judgment is pending before the Hon'ble Supreme Court in a Special Leave Petition and therefore, that this Court may await the orders of the Hon'ble Court. As regards the WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 **==> picture [7 x 8] intentionally omitted <==** factual finding in Ext.P3 that no up-gradation of the distribution system or enhancement of voltage level necessarily is concerned, the learned Standing Counsel says that this was not properly considered by the Appellate Authority. - 3.When I go through the impugned order, as also the pleadings on record, I am afraid that I cannot find any specific contention or challenge raised by the KSEB uad hoc the factual situation as to whether the detected unauthorised load requires upgradation of the existing distribution system or enhancement of the voltage level. The only contention urged in this writ petition is that this additional load will 'over burden the transformer and thus the distribution system'. In the absence of any such specific contention, I fail to understand how the KSEB can assert that Ext.P3 order is bad on that count, particularly since this Court has already, in **Sulabha Marketing** (supra), answered these issues against the petitioner. - 4.As regards the directions in Ext.P3 to revise the assessment at twice the rate for the fixed charges alone is concerned, since a Division Bench of this Court has also concluded emphatically in **Sulabha Marketing** (supra) that only double the fixed charges can be charged, I am bound by the said WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 8 judgment and I am also in affirmation of the same. Hence, merely because an SLP against this judgment is pending, it would be justified for this Court to avoid decision on this writ petition, as has been now prayed for by the standing counsel; particularly because, if the Hon'ble Supreme Court finds otherwise, the KSEB may obtain recourse subject to their Lordship's view in these cases. - 5.In the afore circumstances, I dismiss these writ petitions, leaving liberty to the Kerala State Electricity Board to act as per the directions of the Hon'ble Supreme Court, if any such orders are passed in the Special Leave Petition. **ANU SIVARAMAN Judge** Mrcs/20.12. WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 9 ## **APPENDIX IN WP(C).35530/2019** ## **EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PROVISIONAL ASSESSMENT DATED 18.02.2017 ISUSED BY THE ASSESSING OFFICER.** **EXHIBIT P2 A TRUE COPY OF THE FINAL ASSESSMENT ORDER ISSUED BY THE PETITIONER DATED 01.03.2017.** **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 16.06.2017 PASSED IN APPEAL NO.76/2017 BY THE 2ND RESPONDENT APPELLATE AUTHORITY.** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 10 ## **APPENDIX IN WP(C).35537/2019** ## **EXHIBITS:** **P1TRUE COPY OF THE PROVISIONAL ASSESSMENT DATED 18.1.2017 ISSUED BY THE ASSESSING OFFICER** **P2A TRUE COPY OF THE FINAL ASSESSMENT ORDER ISSUED BY THE PETITIONER DATED 3.2.2017** **P3TRUE COPY OF THE ORDER DATED 26.5.2017 PASSED IN APPEAL NO.48/2017 BY R2 APPELLATE AUTHORITY** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 11 ## **APPENDIX IN WP(C).35544/2019** ## **EXHIBITS:** **P1TRUE COPY OF THE PROVISIONAL ASSESSMENT DATED 7.5.2010 ISSUED BY THE ASSESSING OFFICER** **P2A TRUE COPY OF THE FINAL ASSESSMENT ORDER ISSUED BY THE PETITIONER DATED 8.6.2010** **P3TRUE COPY OF THE ORDER DATED 20.7.2017 PASSED IN APPEAL 91/2017 BY R2 APPELLATE AUTHORITY** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 12 ## **APPENDIX IN WP(C).35546/2019** ## **EXHIBITS:** **P1TRUE COPY OF THE PROVISIONAL ASSESSMENT DATED 4.2.2012 ISSUED BY THE ASSESSING OFFICER** **P2A TRUE COPY OF THE FINAL ASSESSMENT ORDER ISSUED BY THE PETITIONER DATED 12.3.2012** **P3TRUE COPY OF THE ORDER DATED 19.5.2017 PASSED IN APPEAL NO.38/2017 BY R2 APPELLATE AUTHORITY** WP(C).Nos.35530, 35537, 35544, 35546 & 35572 of 2019 13 ## **APPENDIX IN WP(C).35572/2019** ## **EXHIBITS:** **P1TRUE COPY OF THE PROVISIONAL ASSESSMENT DATED 19.5.2017 ISSUED BY THE ASSESSING OFFICER** **P2A TRUE COPY OF THE FINAL ASSESSMENT ORDER ISSUED BY THE PETITIONER DATED 15.6.2017** **P3TRUE COPY OF THE ORDER DATED 11.9.2017 PASSED IN APPEAL NO.165/2017 BY R2 APPELLATE AUTHORITY** **TRUE COPY**