Mata Amritanandamayi Math v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 4TH DAY OF FEBRUARY 2014/15TH MAGHA, 1935 WP(C).No. 9913 of 2009 (H) --------------------------- PETITIONER: ----------MATA AMRITANANDAMAYI MATH, KALYAN ROAD, BELLA.P.O, KANJANGHAD KASARAGOD REPRESENTED BY ITS GENERAL MANAGER (OPERATIONS) PROF.G. RAVINDRAN NAIR. BY ADVS.SRI.K.SRIKUMAR SRI.K.MANOJ CHANDRAN RESPONDENT(S): -------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN PATTOM PALACE.P.O, THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KASARAGOD. 3. THE SUB ENGINEER IN CHARGE, KSEB, ELECTRICAL SECTION, MAVUNGAL KASARAGOD. 4. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, MAVUNGAL. R1 TO 4 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R1-R4 BY ADV. SMT.P.K.RADHIKA, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9913 of 2009 (H) ## APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE BILL DATED 2.9.08. EXT.P2: TRUE COPY OF THE SITE MAHAZAR DT.29.9.08. EXT.P3: TRUE COPY OF THE PROVISIONAL BILL DT.30.09.08. EXT.P4: TRUE COPY OF THE OBJECTION DT.3.10.08. EXT.P5: TRUE COPY OF THE OBJECTION DT.4.10.08. EXT.P6: TRUE COPY OF THE BREAK UP BILL, DT.4.10.2008. EXT.P7: TRUE COPY OF THE LETTER DT.13.10.08. EXT.P8: TRUE COPY OF THE OBJECTION DT.17.10.08. EXT.P9: TRUE COPY OF THE JUDGMENT DT.22.10.09 IN WPC.NO.31076 OF 2008. EXT.P10: TRUE COPY OF THE FINAL ASSESSMENT ORDER DT.18.12.2008. EXT.P11: TRUE COPY OF THE COVERING LETTER AND FINAL ASSESSMENT BILL DT.30.09.08. EXT.P12: TRUE COPY OF THE APPEAL DT.25.12.08. EXT.P13: TRUE COPY OF THE APPELLATE ORDER NO.GB1/APPEAL/MVL/200809/405 DT.11.2.2009. EXT.P13A: TRUE COPY OF THE DEMAND NOTICE DT.20.03.09. EXT.P14: TRUE COPY OF THE SRO NO.250/2005. /TRUE COPY/ P.S TO JUDGE **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.9913 of 2009-H ---------------------------------------------------Dated this the 4[th] February, 2014** ## **J U D G M E N T** The petitioner has filed this Writ Petition challenging Exts.P13, P11 as well as Ext.P10 order. The petitioner is a consumer of electricity with Consumer No.6701008565 of the Mavungal Electrical Section under the 1[st] respondent. According to the petitioner, he was granted a service connection with a connected load of 2119W. The applicable tariff to his connection was LT VII (A). The electrical installation including the Meter, according to the petitioner, is installed in a shed attached to the school that is being conducted by him. The electrical installations in the school are all energised by the said connection. The petitioner was paying the bills in respect of the energy consumed, regularly. 2. In the above circumstances, on 29.09.08, an inspection of the petitioner's premises was conducted by 2 **W.P(c) No.9913 of 2009-H** the 3[rd] respondent in the presence of the Anti Power Theft Squad (APTS), Kasaragod. On the allegation that gadgets in excess of the sanctioned connected load were seen installed, a provisional bill under Section 126 of the Electricity Act, 2003 (hereinafter referred to as `the Act' for short) was issued for an amount of Rs.2,19,000/-. The said provisional bill is Ext.P3. The petitioner objected to the bill pointing out that, he was entitled to be assessed at the rates applicable to LT VII (A) Tariff and not to LT VIII Tariff as done. Though Exts.P4 and P5 objections were submitted, according to the petitioner, they were not considered. However, matters were finalised without considering the petitioner's objections and therefore, he challenged the said action in W.P(c) No.31076 of 2008 before this Court. The said Writ Petition was disposed of by Ext.P9 judgment directing the matter to be finalised after affording an opportunity of being heard to the petitioner. 3. Pursuant to Ext.P9, a hearing was conducted on 13.11.08. However, according to the petitioner, without **W.P(c) No.9913 of 2009-H** 3 considering the objections raised by him, Ext.P10 final order was passed under Section 126 of the Act, confirming the provisional assessment. The petitioner was also issued with a final bill, which is Ext.P11. An appeal filed under Section 127 of the Act against Ext.P10 was not successful. As per Ext.P13, the petitioner's appeal has been dismissed. Thereafter, Ext.P13A demand for payment of the amount was issued to him. It was in the said circumstances that this Writ Petition was filed. 4. It is the contention of the petitioner that, no unauthorised consumption of electrical energy was committed in this case. Charges for energy consumed were being regularly remitted by the petitioner and there are no dues remaining unpaid. Therefore, the assessment that was made under Section 126 of the Act on the basis of LT VIII Tariff is both uncalled for and unsustainable. The said tariff is not applicable in the case of the petitioner and he is entitled to be assessed on the basis of the LT VII Tariff that is applicable to him. 4 **W.P(c) No.9913 of 2009-H** 5. According to the learned counsel for the respondents, Advocate Smt. P.K.Radhika, the petitioner had not applied for or obtained a regular service connection for the school that is being conducted by him. The connection that he was using, was granted only for the purpose of construction of the building and use of the said connection for running the school on regular basis was unauthorised and impermissible. The petitioner ought to have intimated the respondents that the construction was completed and a regular connection ought to have been obtained, for the conduct of the school. The said procedure not having been adopted, it is contended that, his use can only be considered to be unauthorised and liable to be charged at the LT VIII tariff rate. The extension to the school was taken by using PVC wires over a distance of 30 meters, at considerable risk to the persons who frequent the school. Therefore, considering the safety aspect also, the petitioner is liable to be penalised. **W.P(c) No.9913 of 2009-H** 5 6. Heard. The facts are not in dispute. The petitioner does not dispute that, he had drawn a wire from his existing connection for the purpose of regular use at the school that is conducted by him. His only contention is regarding the applicability of LT VIII tariff. According to the petitioner, he is liable to be penalised only at the rate applicable to LT VII(A) tariff, which is the tariff applicable to commercial connections. The said aspect not having been properly considered by the authorities, it is contended that, the impugned orders are liable to be set aside. 7. The question as to whether the rates applicable to LT VIII tariff can be applied to an unauthorised extension as in the present case, was considered by a learned Single Judge of this Court in **Jomy Thomas Manjooran v. Kerala State Electricity Board & Ors.** [2013(1) KLJ 667]. C.K.Abdul Rahim, J. has considered, an identical situation where, on an inspection conducted at the premises of the consumer in the said case, it was found that an unauthorised extension had been taken, to energise various **W.P(c) No.9913 of 2009-H** 6 electrical appliances in excess of the connected load that was granted. Therefore, an assessment under Section 126 of the Act was made on the basis of the rates applicable to the Tariff LT VIII. Relying on the dictum laid down in **J.D.T Islam Orphanage Committee v. The Assistant Engineer, KSEB and others** [2007(3) KHC 6], it has been held that the rates applicable to LT VIII tariff could not be applied to a situation as in the present case. It has been held that, the rates applicable to LT VIII tariff could be levied only in the case of temporary extensions taken from the premises of the consumer without authority. In such cases, the tariff is computed on fixed charge per KW of the connected load per day in addition to application fee and testing fee. In the case of such temporary extensions, there is no means of measuring the quantity of electricity consumed for the reason that the same is metered by the existing meter that was already installed at the main premises. On the above basis, it has been held that, in such cases as in the present one, the consumer is liable to be ## **W.P(c) No.9913 of 2009-H** 7 assessed only as per the tariff that is applicable to his connection. 8. In view of the above dictum with which I respectfully agree, it has to be held that the assessment in the present case is unsustainable and liable to be set aside. The assessment here has been done by applying rates applicable to the LT VIII tariff. Therefore, the amounts due from the petitioner would have to be reassessed under Section 126 of the Act, by applying the rates applicable to LT VII (A) tariff. The respondents shall be at liberty to make such a fresh reassessment. 9. In the result: - a) This Writ Petition is allowed; b) Exts.P10, P11, P13 and P13(A) are set aside. The 4[th] respondent is directed to conduct a fresh assessment under Section 126 of the Act on the basis of the rates applicable to LT VII(A) tariff. Such a provisional assessment shall be finalised only after considering the objections that the petitioner may prefer to the same upon 8 **W.P(c) No.9913 of 2009-H** notice of such provisional assessment being issued to him. c) Proceedings in accordance with the above directions shall be completed, as expeditiously as possible and at any rate, within a period of two months of the date of receipt of a copy of this judgment. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/