Manager, M/S NADAN SWUARE v Kerala State Electricity Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** ## **THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933** ## **WPC.No. 8593 of 2009 (T)** **------------------------** **PETITIONER(S):** - **-----------------------** **MANAGER,M/S.NADAN SWUARE, PEROORKADA, JUNCTION, PEROORKADA P.O. THIRUVANANTHAPURAM.** **BY ADVS.SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN** **RESPONDENT(S): ---------------------------** **1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS CHAIRMAN.** **2. DY.CHIEF ENGINEER, ELECTRICAL CIRCLE (URBAN),THIRUVANANTHAPURAM.** **3. SASANKAN NAIR (FORMER EXECUTIVE ENGINEER), KSEB OFFICE,POWER HOUSE ROAD, THIRUVANANTHAPURAM (TO BE REPRESENTED OR TO BE SERVED THROUGH THE EXECUTIVE ENGINEER, POWER HOUSE ROAD, THIRUVANANTHAPURAM).** **4. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, VELLAYAMBALAM.** **5. ASST.ENGINEER, KSEB,PEROORKADA, THIRUVANANTHAPURAM.** **R1,R2,R4,R5 BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE,SC,KSEB BY ADV.SRI.P.P.THAJUDEEN, SC, K.S.E.B SRI.C.K.KARUNAKARAN, SC,KSEB SRI.S.SHARAN,SC,K.S.E.BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.8593/2009 T** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE RECEIPT DTD. 7/07/2007 ISSUED BY THE 1ST RESPONDENT RECEIVING THE APPLICATION SUBMITTED BY THE PETITIONER.** - **P2: COPY OF THE LETTER DTD. 9/01/2008 SUBMITTED TO THE THIRD RESPONDENT REQUESTING FOR ORDERS FOR POWER ALLOCATION.** - **P3: COPY OF THE LETTER DTD.01/02/2008 SUBMITTED TO THE THIRD RESPONDENT.** - **P4: COPY OF THE MAHAZAR DTD. 18/02/2008.** - **P5: COPY OF THE BILL DTD. 20/02/2008 FOR RS.3,58,095/-.** - **P6: COPY OF THE LETTER DTD. 25/02/2008 SUBMITTED BY THE PETITIONER TO THE ASSISTANT ENGINEER.** - **P7: COPY OF THE LETTER DTD. 28/02/2008 SENT BY THE THIRD RESPONDENT.** - **P8: COPY OF THE REPRESENTATION DTD. 30/04/2008 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF ENGINEER.** - **P9: COPY OF THE NOTICE DTD. 7/05/2008 OF THE 5TH RESPONDENT.** - **P10: COPY OF RECEIPT DTD. 9/05/2008 EVIDENCE REMITTANCE OF 50# OF THE AMOUNT BY THE PETITIONER.** - **P11: COPY OF THE REPRESENTATION DTD. 7/05/2008 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY CHIEF ENGINEER.** - **P12: COPY OF THE COMMUNICATION DTD. 11/05//2008 SENT BY THE DEPUTY CHIEF ENGINEER.** - **P13: COPY OF THE COMMUNICATION DTD. 15/7/2008 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE 5TH RESPONDENT.** - **P14: COPY OF THE NOTICE OF HEARING DTD. 18/09/2008 ISSUED BY THE DEPUTY CHIEF ENGINEER.** - **P15: COPY OF THE ORDER DTD. 28/11/2008 SANCTIONING POWER ALLOCATION TO THE PETITIONER.** **Kss ..2/-** **....2.....** ## **WPC.NO.8593/2009 T** ## **P16: COPY OF THE ORDER DTD. 20/12/2008 OF THE DEPUTY CHIEF ENGINEER DISMISSING THE APPEAL OF THE PETITIONER.** **P17: COPY OF THE BILL DTD. 15/01/2009 FOR RS.1,79,047/-.** **P17(A):COPY OF THE BILL DTD. 8/01/2009 FOR RS.95,857/-. P18: COPY OF THE BILL DTD. 17/01/2009 FOR RS.3,83,660/-.** **P19: COPY OF BILL DTD. 8/8/2007 FOR RS.14,487/-.** **P19(A): COPY OF BILL DTD. 07/09/2007 FOR RS.35,415/-.** **P19(B): COPY OF BILL DTD. 8/10/2007 FOR RS.31,421/-. P19(C): COPY OF BILL DTD. 07/11/2007 FOR RS.33,436/-. P19(D): COPY OF BILL DTD. 07/12/2007 FOR RS. 41,074/-. P19(E): COPY OF BILL DTD. 08/01/2008 FOR RS.41,570/-. P19(F): COPY OF BILL DTD. 08/02/2008 FOR RS.32,290/-.** **P20: COPY OF BILL DTD. 8/2/2008 FOR RS.57,439/-.** **P20(A):COPY OF BILL DTD. 7/03/2008 FOR RS.38,993/-. P20(B): COPY OF RECEIPT DTD. 8/4/2008 FOR RS.28.210/-. P20(C): COPY OF BILL DTD. 8/07/2008 FOR RS.39,166/-. P20(D): COPY OF BILL DTD. 8/8/2008 FOR RS.45,727/-. P20(E): COPY OF BILL DTD. 8/8/2008 FOR RS.45,727/-. P20(F): COPY OF BILL DTD. 7/10/2008 FOR RS.68,706/-. P20(G): COPY OF BILL DTD. 7/10/2008 FOR RS.55,132/-. P20(H): COPY OF BILL DTD. 7/11/2006 FOR RS.49,055/-. P20(I): COPY OF BILL DTD. 6/12/2008 FOR RS.44,866/-.** **Kss** **..3/-** **..3....** **WPC.NO.8593/2009 T** ## **P21: COPY OF THE BILLDTD. 6/2/2009 FOR RS.64,375/-.** **P22: COPY OF THE RECEIPT ISSUED BY THE KSEB EVIDENCING THE PAYMENT OF EXT.P21.** **P23: COPY OF BILL NO.16447 DTD. 5/3/2009.** ## **RESPONDENT'S EXHIBITS & ANNEXURES:** **R2(A): COPY OF THE B.O.(FM) NO.2927/2008 (DPC II/HT-I/2006) DTD.28/11/2008.** **R2(B): COPY OF THE POWER ALLOCATION, DTD. 26/03/2009.** **R2(C): COPY OF THE LETTER DB/PA-IIT/08-09/RENEWAL/VLBM, DTD. 24/09/2009.** **R2(D): COPY OF THE APPLICATION FOR SERVICE CONNECTION.** **R2(E): COPY OF THE LETTER DB/VBLM/HT/09-10/218, DTD. 24/02/2010.** **ANNEX.A1: COPY OF THE SAID ORDER DTD. 2/5/2009 OF THE 1ST RESPONDENT.** **ANNEX.A2: COPY OF THE ORDER DTD. 4/11/2009 OF THE ELECTRICAL INSEPCTORATE.** **ANNEX.A1 (I.A.NO.2713/2010) - COPY OF THE RECEIPT DTD. 7/05/2009.** **ANNEX.A2 - COPY OF THE RECEIPTS DTD. 10/08/2009. ANNEX.A3 - COPY OF THE ORDER DTD. 25/01/2010 IN I.A.404/2010 PASSED BY THIS HON'BLE COURT. ANNEX.A4 - COPY OF THE COVERING LETTER DTD.29/1/2010 SUBMITTED BY THE PETITIONER.** **ANNEX.A5 - COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF RS.1000/- ON 15/02/2010.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **B.P.RAY, J** ## **------------------------------------W.P.(C).No. 8593 OF 2009 ----------------------------------------Dated 2[nd] February, 2012** ## **J U D G M E N T** 1. Heard the learned counsel for the petitioner and the learned standing counsel Sri.P.Santhalingam for the Kerala State Electricity Board. 2. The issue involved in this case is squarely covered by the decision in Executive Engineer and another v. Sitaram Rice Mill reported in (2010 (4) KHC 1) wherein the Apex Court in paragraphs 44 and 46 held as follows: “44. Minimum energy charges are to be levied with reference to 'contract demand' at the rate prescribed under the terms and conditions. These clauses of the agreement clearly show that the charges for consumption of electricity are directly relatable to the sanctioned/connected load and also the load consumed at a given point of time if it is in excess of the sanctioned/connected load. The respondent could consume electricity upto 110 KVA but if the connected load exceeded that higher limit, the category of the respondent itself could stand changed from 'medium industry' which will be governed by a higher tariff. 45. xxxxx 46. On the cumulative reading of the terms and conditions of supply, the contract executed between the parties and the provisions of the 2003 Act, we have no hesitation in holding that consumption of electricity in excess of the sanctioned/connected load shall be an 'unauthorised use' WPC. No.8593/09 2 of electricity in terms of Section 126 of the 2003 Act. This, we also say for the reason that overdrawal of electricity amounts to breach of the terms and conditions of the contract and the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations. In somewhat similar circumstances, where the consumer had been found to be drawing electricity in excess of contracted load and the general conditions of supply of electricity energy by the Board and Clause 31(f) of the same empowered the Board to disconnect supply and even levy higher charges as per the tariff applicable, this Court held that such higher tariff charges could be recovered. While noticing the prejudice caused, the Court in the case Bhilari Rerollers and others v. M.P.Electricity Board and others (2003 KHC 1521 : 2003 (7) SCC 185 : JT 2003 (7) SC 215), held as under: “21. The respondent Board, therefore, is entitled to raise the demand under challenge since such right has been specifically provided for and is part of the conditions for supply and particularly when such drawal of extra load in excess of the contracted load is bound to throw out of gear the entire supply system undermining its efficiency, efficacy not only causing stress on the installations of the Board but considerably affect other consumers who will experience voltage fluctuations. Consequently, we see no merit in the challenge made on behalf of the appellants. The appeals, therefore, fail and shall stand dismissed but with no costs.” ## 3. In that view of the authoritative pronouncement of the Apex Court, I set aside the order of the assessing authority as well as the appellate authority and remit the matter to the assessing officer to dispose of the same in accordance with the judgment referred above. Learned WPC. No.8593/09 3 counsel for the petitioner submits that no penalty can be levied under Section 126 of the Electricity Act, 2003. The assessing authority, while considering the matter, shall take into consideration all the observations of the State Electricity Regulatory Commission in D.P.75/2009 dated 19.1.2010 and the judgment of the Apex Court and decide the question afresh after giving the petitioner an opportunity of being heard. The entire exercise shall be completed within a period of two months from the date of receipt of a copy of this judgment subject to the condition that, as agreed, the petitioner deposits 50% of the demand within one month and the amount, if any deposited, shall be adjusted. Since substantial amount has been paid, no further amount need to be paid. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 22.2.2012. It is open to the petitioner to raise all relevant points before the assessing authority, if so advised. Writ petition is disposed of as above. Sou. Sd/- **B.P. RAY, JUDGE.** // True copy //