Khadamat Integrated Solutions Private Ltd. v Kerala State Electricity Board Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** # **WP(C).No. 14766 of 2018** ## **PETITIONER/S:** **KHADAMAT INTEGRATED SOLUTIONS PRIVATE LTD. BUILDING NO. 61/24A, VENUGEETHAM TOWER, CHURCH LANDING ROAD,PALLIMUKKU,KOCHI- 682 016REPRESENTED BY ITS MANAGER (OPERATIONS) MR.MATHEWS GEORGE.** **BY ADVS. SRI.MILLU DANDAPANI SRI.S.VISHNU (V-736)** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTRICITY BOARD LTD. VYDHYUTHIBHAVANAM,PATTAM, THIRUVANANTHAPURAM- 695 004 REPRESENTED BY ITS CHAIRMAN.** - **2 THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, ERNAKULAM, PIN-682011** - **3 THE ASSISTANT EXECUTIVE ENGINEER ANTI POWER THEFT SQUAD (APTS)KERALA STATE ELECTRICITY BOARD LTD.,ERNAKULAM- 682 011** - **4 APPELLATE AUTHORITY, OFFICE OF THE KERALA STATE ELECTRICITY APPELLATE AUTHORITYCC 51/52, NEAR 110 KV SUBSTATION,VYTILLA, ERNAKULAM- 682 019** **BY ADV. SRI.A.ARUNKUMAR-SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 14766/18 2 ## **JUDGMENT** The petitioner is stated to be a Company incorporated under the provisions of the Companies Act, 1956 and it impugns Ext.P2 order of the Kerala State Electricity Appellate Authority (hereinafter referred to as Appellate Authority for short), as per which they have mulcted with the liability of having to pay double the fixed charges and double the consumption charges, on the ground that the regularisation of the unauthorised load, earlier detected in their premises, would require upgradation of the Distribution System. 2. The petitioners assert that this finding in Ext.P2 is completely untenable saying further that the Company was having two electricity connections, both of which was found to be consuming unauthorised load; and therefore, that the Company had requested that these connections be merged. According to them, this request was WPC 14766/18 3 made by the petitioners as per the advice of the concerned officials of the Anti Power Theft Squad (APTS), of the KSEB, which had conducted the inspection on their premises and therefore, thinking that all further complications could consequently be avoided. They submit that however, the Appellate Authority has now issued Ext.P2, wherein, merely because there is a request from them for merger of both connections into a single electric connection, it is concluded that upgradation of the existing Distribution System is necessary; thus warranting the petitioner to make payment of double of both the fixed charges and consumption charges. They contend that, going by the judgment of the Division Bench of this Court in **Sulabha Marketing (P) Ltd v. Kerala State Electricity Board TVM and others [2017(3) KHC 563 (DB)]** , the regularisation of the unauthorised load, in the absence of the WPC 14766/18 4 requirement of enhancement of the Distribution System or of enhancement of voltage capacity, only double the fixed charges are required to be paid and that Ext.P2 order has mulcted them with the liability to pay double of both fixed and consumption charges only because of their request for merger of the two connections. The petitioner says that the conclusions in Ext.P2 are completely untenable and asserts that merely because there is a merger of two connections, it cannot automatically lead to a conclusion that the distribution system will have to be enhanced. 3. I have heard Sri. Millu Dandapani, the learned counsel for the petitioner and Sri. Arun Kumar, the learned Standing Counsel for the KSEB. 4. After Sri. Millu Dandapani made his submissions in the afore lines, Sri. Arun Kumar, the learned Standing Counsel for the KSEB, WPC 14766/18 5 affirms that the requirement for enhancement of the Distribution System became necessary because the petitioner had made a request for merger of the two connections into a single on Tension connection. He says that, as is clear from Ext.P2 order, the merger of these connections would require enhancement of the distribution system and it is therefore, that the benefit of **Sulabha Marketing** ( _supra)_ had to be denied to them. He, however, concedes that the order does not say how the enhancement of the distribution system has become unavailable or as to why, by mere merger of these two connections, such an enhancement is warranted. 5. When I analyse the submissions made before me by the learned counsel for the parties, as also the materials on record, I fail to understand from Ext.P2 as to how the distribution system is concluded to require enhancement, merely because of the merger of two WPC 14766/18 6 connections. Nothing is seen recorded in Ext.P2 as to how this becomes inevitable, merely because of the merger of the two connections except that a technical view has been taken that when a merger takes place, the distribution system changes and therefore, that it amounts to enhancement. 6. I am afraid that the conclusions, as presently available in Ext.P2, would not be sufficient to deny the right of the petitioner to claim the benefits under the ratio of **Sulabha** **Marketing** ( _supra)_ and I am of the firm view that unless this issue gains the attention of the Appellate Authority afresh, I cannot allow the impugned assessment, made pursuant to Ext.P2 order of the Appellate Authority, to be set in operation. In the afore perspective, I order this writ petition and set aside Ext.P2 to the extent to which it declares that the enhancement of the WPC 14766/18 7 distribution system is inevitable consequent to the merger of the two connections of the petitioner; and I resultantly direct the Appellate Authority to reconsider this issue, after affording an opportunity of being heard to the petitioner as also the concerned officials of the KSEB, as expeditiously as is possible but not later than two months from the date of receipt of a copy of this judgment. Axiomatically, Ext.P3 demand, which is based solely on the conclusions in Ext.P2, afore set aside, will also stand vacated; however, clarifying that the amount of Rs.2,00,000/- paid by the petitioner, in obedience to the interim order of this Court, need not be refunded, until a fresh decision is taken by the Appellate Authority in terms of this judgment. Needless to say, if the view of the Appellate Authority is to confirm the conclusions in Ext.P2 as it stood earlier, then WPC 14766/18 **==> picture [6 x 8] intentionally omitted <==** certainly the KSEB will be entitled to issue fresh demand to the petitioner in terms of such order or in terms of any modification to Ext.P2 that the Appellate Authority may make. This writ petition is thus ordered. Sd/- **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 14766/18 9 ## APPENDIX ## PETITIONER'S/S EXHIBITS: |EXHIBIT P1|TRUE COPY OF THE JUDGMENT OF THIS| |---|---| ||HON'BLE COURT IN WPC NO 29304 DATED| ||31.8.2017| |EXHIBIT P2|TRUE COPY OF THE COMMON ORDER IN| ||APPEAL NO.246 & 247/2017/ORDER /801| ||DATED 21.11.2017 PASSED BY THE 4TH| ||RESPONDENT| |EXHIBIT P3|TRUE COPY OF THE DEMAND CUM| ||DISCONNECTION NOTICE NO. DB/CLG/APTS.| ||CO NO 14518 & 13918/2018-19 DATED| ||7.4.2018 ISSUED BY THE 2ND RESPONDENT|