Malabar Stone Crushers v. Kerala State Electricity Board Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 16[TH]DAY OF FEBRUARY 2023 / 27TH MAGHA,1944 ``` ## **`WP(C) NO. 4759 OF 2023`** ## **`PETITIONER/S:`** ``` MALABAR STONE CRUSHERS AGED 63 YEARS 19/356 MUNDOOR, PUTHOOR, KOZHIKODE, KOZHIKODU DISTRICT REPRESENTED BY ITS PROPRIETOR ABU S/O AHAMMED KUTTY, VARIKKOTTUCHALIL, MUNDOOR DESAM, PUTOOR P.O, PUTHOOR VILLAGE, THAMARASSERY TALUK, KOZHIKODU., PIN - 673572 BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ ``` ## **`RESPONDENT/S:`** ``` 1KERALA STATE ELECTRICITY BOARD LTD VYDHUDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REP BY CHIEF ENGINEER, PIN - 695004 2DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL CIRCLE, VAIDHYDHITY BHAVANAM, GANDHI ROAD, KOZHIKODE, PIN - 673011 3ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL SECTION, CHULLIYODU, KOZHIKODE, PIN - 673020 4SUB ENGINEER KERALA STATE ELECTRICITY BOARD LTD, OMASSERY ELECTRICAL SECTION, KOZHIKODE DISTRICT, PIN - 673582 ``` ``` WP(C) NO. 4759 OF 2023 ``` ``` 2 ``` ``` 5THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD LTD, OMASSERY ELECTRICAL SECTION, KOZHIKODE DISTRICT, PIN - 673582 ``` ``` SRI RIJI RAJENDRAN SC ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON16.02.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 4759 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** The petitioner is running a Metal crusher unit at Kozhikode. For the purpose of his business, he has availed electricity connection from the 1st respondent. According to the petitioner, he was being billed under Industrial HT1(A) Tariff with a sanctioned connected load of 148.77 Kilowatt and registered contract demand of 200 KVA under the Electrical section of Omassery in Kozhikode District. 2. While so, the petitioner was served with a notice dated 21.10.2022 informing him that the recorded maximum demand of the petitioner has exceeded the contract demand of 200 KVA during three billing periods during the last financial year. The petitioner was directed to take necessary action to regularise the contract demand of the above HT service connection. According to the petitioner, to Ext.P14 notice, the petitioner submitted a detailed representation on 21.11.2022. 3. While so, a surprise inspection was conducted by the Anti-Power Theft Squad of the KSEB, and they allegedly detected that the petitioner was utilizing unauthorizedly a connected load of 117.829 KW under HT1(A) Tariff. Consequently, Ext. P16 provisional assessment order was issued, to which a detailed objection was submitted by the petitioner, ``` WP(C) NO. 4759 OF 2023 ``` ``` 4 ``` as is evident from Ext. P17. Without adverting to any of the contentions raised by the petitioner and without affording him an opportunity of being heard, Ext. P18 order was issued by the 3rd respondent. It is on these assertions that this writ petition is filed seeking to quash Exts. P16 and P18 and for incidental reliefs. 4. Sri. P.M. Ziraj, the learned counsel appearing for the petitioner, submitted that the authorized officers had inspected the premises of the petitioner, and they have been issuing regular demand notices, which have all been cleared by the petitioner. It is submitted that the fact that the energy supplied to the petitioner is on-demand tariff basis and not on a connected load basis was also not reckoned. It is further submitted that before passing the impugned order, no adequate opportunity was granted to substantiate the valid and legitimate contentions of the petitioner. 5. On instructions, Sri. Riji Rajendran, the learned Standing Counsel appearing for the respondents, would refer to the observations made by the Hon’ble Supreme Court in **Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco), and Anr. v. Sri Seetaram Rice Mill** [(2012) 2 SCC 108], and it is argued that it is for the petitioner to prefer an appeal by remitting 50% of the assessed ``` WP(C) NO. 4759 OF 2023 ``` ``` 5 ``` amount, and this Court will not be justified in interfering under Article 226 of the Constitution of India. 6. I have considered the submissions advanced. 7. The main contention advanced by the learned counsel appearing for the petitioner is that the procedure adopted by the 3rd respondent is flawed and the Principals of natural justice have been violated. On a perusal of Ext. P18 order, I find that pursuant to the notice, the son of the petitioner had appeared and that his version was heard. 8. Though the learned counsel appearing for the petitioner has, with much vehemence, persuaded this Court to entertain this writ petition, I am of the considered opinion that in view of the observations made by the Apex Court in **Seetaram** (supra), the petitioner will have to avail the statutory remedy. As held by the Apex court in **Radha Krishan Industries v. State of Himachal Pradesh** [AIR 2021 SC 2144], when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution of India. This rule of exhaustion of statutory remedies is a rule of policy, convenience, and discretion. ``` WP(C) NO. 4759 OF 2023 ``` ``` 6 ``` 9. Having considered the entire facts, I am of the view that the petitioner can be relegated to the statutory remedy available to them under Section 127 of the Act. In that view of the matter, this writ petition is ordered by issuing the following directions: (i) it would be open to the petitioner to mount a challenge against the order impugned before the Kerala State Electricity Appellate Authority, which shall be done within a period of four weeks from today. (ii) To enable the petitioner to prefer an appeal as ordered above, coercive proceedings, if any, proposed against him shall be deferred for a period of four weeks. This writ petition is disposed of. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` WP(C) NO. 4759 OF 2023 ``` ``` 7 ``` ## **`APPENDIX OF WP(C) 4759/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE DEMAND NOTICE DATED 6.01.2022 ISSUED BY THE FIRST RESPONDENT ``` - `Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DATED 3.02.2022 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P3 TRUE COPY OF THE DEMAND NOTICE DATED 4.03.2022 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P4 TRUE COPY OF THE DEMAND NOTICE DATED 7.04.2022 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P5 TRUE COPY OF THE DEMAND NOTICE DATED 4.05.2022 ISSUED BY THE FIRST RESPONDENT` ``` Exhibit P6TRUE COPY OF THE DEMAND NOTICE DATED 3.06.2022 ISSUED BY THE FIRST RESPONDENT ``` - `Exhibit P7 TRUE COPY OF THE DEMAND NOTICE DATED 8.07.2022 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P8 TRUE COPY OF THE DEMAND NOTICE DATED 5.08.2022 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P9 TRUE COPY OF THE DEMAND NOTICE DATED 2.09.2022 Exhibit P10 TRUE COPY OF THE DEMAND NOTICE DATED 3.10.2022 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P11 TRUE COPY OF THE DEMAND NOTICE DATED 3.11.2022 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P12 TRUE COPY OF THE DEMAND NOTICE DATED 2.12.2022 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P13 TRUE COPY OF THE DEMAND NOTICE DATED 5/01/2023 ALONG WITH GENERAL INSTRUCTION` ``` WP(C) NO. 4759 OF 2023 ``` ``` 8 ``` ``` Exhibit P14TRUE COPY OF THE NOTICE DATED 21/10/2022 ISSUED BY THE SECOND RESPONDENT ``` ``` Exhibit P15TRUE COPY OF THE COMMUNICATION SUBMITTED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT DATED 21.11.2022 Exhibit P16TRUE COPY OF THE PROVISIONAL ORDER DATED 3/12/2022 ISSUED BY THE THIRD RESPONDENT Exhibit P17TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DATED 13/12/2022 ``` ``` Exhibit P18TRUE COPY OF THE PROCEEDINGS OF THE THIRD RESPONDENT DATED 22/12/2022 ```