M/S Idea Mobile Communications Ltd. v. The Kerala State Electricity Board, The Deputy Chief Engineer, The Assistant Engineer, and The Kerala State Electricity Regulatory Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938** **WP(C).No. 31524 of 2010 (M) ----------------------------** **PETITIONER(S):** **-------------** **M/S.IDEA MOBILE COMMUNICATIONS LTD., SECOND FLOOR, MERCY ESTATE,, RAVIPURAM, COCHIN682015, REP. BY ITS SENIOR, MANAGER, SRI.RAMACHANDRAN C.** **BY ADVS.SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN** **RESPONDENT(S):** **--------------** **1. THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY,, VYDYUTHIBHAVANAM, THIRUVANANTHAPURAM - 695 001.** **2. THE DEPUTY CHIEF ENGINEER,** **K.S.E.BOARD, ELECTRICAL CIRCLE, TIRUR - 676 107.** **3. THE ASSISTANT ENGINEER,** **K.S.E.BOARD, ELECTRICAL SECTION, CHELARI - 676 107. 4. KERALA STATE ELECTRICITY REGULATORY COMMISSION,, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 001, REP. BY ITS CHAIRMAN.** **R1-R3 BY ADVA. SRI.RAJU JOSEPH (SR.)** **SRI.K.T.PAULOSE, SC, KSEB SMT.NAZEEBA.O.H. SRI.P.P.THAJUDEEN, SC R4 BY ADV. SRI.S.SUJIN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 31524 of 2010 (M)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **------------------------** **EXT.P1: PHOTOCOPY OF THE INSPECTION SITE MAHAZAR DTD.18.2.2010.** **EXT.P2: PHOTOCOPY OF THE NOTICE CUM DISCONNECTION NOTICE DTD.19.2.2010.** **EXT.P3: PHOTOCOPY OF PROVISIONAL BILL DTD.19.2.2010 ISSUED BY THE THIRD RESPONDENT.** - **EXT.P4: PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DTD.24.2.2010.** - **EXT.P5: PHOTOCOPY OF ORDER PASSED BY THE 3RD RESPONDENT DTD.23.3.2010.** - **EXT.P6: PHOTOCOPY OF THE FINAL ORDER DTD.15.9.2010 PASSED BY THE 2ND RESPONDENT ON THE APPEAL FILED BY THE PETITIONER.** - **EXT.P7: PHOTOCOPY OF THE FINAL BILL CUM DISCONNECTION NOTICE ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER DTD.30.9.2010.** - **EXT.P8: PHOTOCOPY OF THE BOARD ORDER NO.B.O.(FB) NO.46/2003 (PLG.COM4206/01 DTD.15.1.2003.** **EXT.P9: PHOTOCOPY OF THE BOARD ORDER NO.DPC1/C-182/2007 NO.368/2008 DTD.8.7.2008 ISSUED BY 1ST RESPONDENT.** **EXT.P10: TRUE COPY OF THE JUDGMENT DTD.10.2.2006 IN OP.NO.26408/2000 BEFORE THE HON'BLE HIGH COURT OF KERALA.** - **EXT.P11: THE PHOTOCOPY OF THE JUDGMENT IN EP.NO.974/2006 IN OP.26408/2000.** **EXT.P12: PHOTOCOPY OF THE INTERIM ORDER DTD.9.7.2010 IN WP(C) NO.21396/2009 OF THIS HON'BLE COURT.** ## **RESPONDENT(S)' ANNEXURES:** **NIL** **//TRUE COPY//** **Msv/** **P.S.TO JUDGE** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.31524 of 2010 ---------------------------------------- Dated this the 17[th] day of June 2016 ## **J U D G M E N T** Petitioner challenges Exts.P2, P3 and P7 by which the petitioner is called upon to pay an amount of Rs.1,38,188/- being the charges for unauthorised additional load as directed in Ext.P6 proceedings of the Deputy Chief Engineer, Electrical Circle, Tirur. 2. The short facts involved in the writ petition would disclose that the petitioner is a service provider for conducting cellular mobile operations in the State. The demand presently made is with reference to a power connection in Chellari area. Petitioner had put up a tower and power connection had been given with consumer No.13270 with a connected load of 16KW. 3. On instructions given by the Telecom Regulatory Authority of India (TRAI), the petitioner shared this site with other mobile operators as well. Monthly bills were being raised by the respondent Department which were being paid from time to time. However, later, petitioner was served with a notice stating that there was unauthorised use of electricity as permission was W.P.C.No.31524/2010 2 granted to other mobile operators to fix their gadgets for which no permission has been obtained. Accordingly, proceedings have been taken inter alia contending that the petitioner was using unathorised extension and accordingly a provisional bill has been issued, which was later made final. Challenge was made to the same under Section 127 of the Electricity Act, 2003 which resulted in Ext.P6 order. In Ext.P6, the appellate authority had come to the conclusion that revised penal bill has to be issued treating unauthorised extension as an unauthorised additional load and due credit may be allowed to the amount already credited. Surcharge imposed during the appeal pending period also has been waived. 4. The main contention urged by the petitioner is that the connected load had never been increased on account of permitting another operator to use the power supply given by the respondent and therefore there was no reason to impose any penalty on the petitioner. The petitioner therefore sought for declaring that Regulation 51(1) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 (hereinafter referred to as 2005 Regulations) as ultra vires the statute and W.P.C.No.31524/2010 3 unenforceable and seeks to quash the impugned bills as well as the orders passed thereon. 5. As far as the challenge to the Regulations are concerned, I do not think that any materials have been brought on record to justify such a challenge other than stating that the provision is ultra vires the statute. No pleadings had been made out to come to such an inference. The issue as well has been decided by the Supreme Court in **Executive Engineer and Another v. Sri.Seetaram Rice Mill** [(2012) 2 SCC 108]. Therefore, challenge to Regulation 51(1) of the 2005 Regulations is not sustainable and is rejected. 6. The next question is as to whether there is any unauthorised load. What is unauthorised load is stated in Rule 51 of the 2005 Regulations, which is extracted as under: _“_ _**51. Unauthorised load** .- Where a Low Tension Consumer exceeds the connected load and/or resorts to unauthorized additional load and if the connected load exceeds 100 KVA, the unauthorized additional load shall be disconnected by the consumer within twenty-four hours of detection of the unauthorized load by the Board's_ W.P.C.No.31524/2010 4 _officers or take action to regularize the unauthorized additional load. If he fails to disconnect the unauthorized load within the time stipulated, the power supply to the premises shall be disconnected after the expiry of twenty-four hours. A notice to this effect shall be issued to the consumer by the Board's officer immediately on detection of the unauthorized additional load._ _(1) The unauthorized additional load in case of LT/HT/EHT consumers shall be penalized as per Clause 50(5) & (6) above.”_ It is inferred that if a Low Tension Consumer exceeds the connected load, it becomes unauthorised and therefore penalty has to be imposed in terms of Clause 50(5) of the Regulations, which reads as under: ## _“_ _**50. Misuse of Energy** .-_ _(1) xxxx_ ## _xxxx_ _(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place, and if however the_ W.P.C.No.31524/2010 5 _period during which such unauthorised use of electricity has taken place cannot be ascertained such period shall be limited to a period of 12 month immediately preceeding date of inspection._ ” 7. Having regard to the aforesaid statutory provisions, I do not think that the petitioner is entitled for any relief in the present writ petition. 8. Learned counsel for the petitioner however points out that the computation made in Ext.P7 is wrong. 9. Learned counsel for the respondent Board also points out that the petitioner has a three phase connection. However, while computing the fixed charges for unauthorised additional load, the computation taken is 5 x 50 x 12 x 2 whereas it ought to be 5 x 100 x 12 x 2. That apart, the dividing factor for arriving at the energy charges ought to have been 21000 instead of 16000 watts. In the said circumstances, the only relief that could be given is to modify Ext.P7 bill to the extent of computing fixed charges as well as energy charges in the manner aforesaid. The writ petition is therefore disposed of as follows: W.P.C.No.31524/2010 6 i) That a revised bill shall be issued taking into consideration the fact that as to whether the petitioner is a three phase connection or single phase connection, fixed charges shall be computed accordingly. ii) Dividing factor for computing the energy charges shall be taken as 21000 instead of 16000. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr