M/S. INDIA TELECOME INFRA LTD. v. KERALA STATE ELECTRICITY BOARD

WP(C) NO. 1000 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 WP(C) NO. 1000 OF 2010** ## **PETITIONER/S:** M/S.INDIA TELECOME INFRA LTD. NO.42/1237/(1), 2ND FLOOR, V.S.ARCADE,, POWER HOUSE ROAD, OPP. POWER HOUSE,, KACHERIPPADY, COCHIN682018,, REP. BY ITS CIRCLE HEAD - BOBBY SEBASTIAN. BY ADVS. SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.SANTHOSH MATHEW ## **RESPONDENT/S:** 1 KERALA STATE ELECTRICITY BOARD REP. BY ITS SECRETARY,, BOARD SECRETARIAT, VYDYUTHIBHAVANAM,, THIRUVANANTHAPURAM. 2 THE CHIEF ENGINEER COMMERCIAL TARIFF KERALA STATE ELECTRICITY BOARD,, VYDYUTHIBHAVANAM, THIRUVANANTHAPURAM. 3 THE ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SECTION, KSEB,, THEVAKKAL, ERNAKULAM DISTRICT. BY ADVS. SRI.K.T.PAULOSE, SC, KSEB SRI.P.P.THAJUDEEN, SC, K.S.E.B WP(C) NO. 1000 OF 2010 2 ## **OTHER PRESENT:** 0 SRI.JOSEPH ANTONY FOR KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1000 OF 2010 3 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C.) No. 1000 of 2010** **-------------------------------------Dated this the 16[th] day of September, 2022** ## **JUDGMENT** ## The above writ petition is filed with following prayers : (i) Call for the records leading to Exhibits P1, P2, P6, P8, P12 and Board order P13 in so far as it treat the petitioner's service connections as temporary and thereby charging the petitioner at LT III tariff and quash the same by the issuance of a writ of certiorari or such other writ, order or direction; (ii) Issue writ of mandamus or any other appropriate writ, order or direction declaring that the Kerala State Electricity Board does not have any authority to treat the connection given to the mobile operators like the petitioner as temporary and thereby charging the petitioner at LT III tariff for the reason that they have not produced relevant documents at the time of issuance of the connection and direct to accept the monthly bills in Con. No.12627 of the petitioner in LT VIIA Tariff. (iii) Pass such other orders as this Honourable Court may deem fit and proper in the facts and circumstances of the case.” [SIC] WP(C) NO. 1000 OF 2010 4 2. The petitioner is a limited Company providing infrastructure to various mobile operators. Petitioner constructed a mobile telecommunication tower in Kuzhuvelipadi area and the petitioner is using an electric connection in the said site. According to the petitioner, the above site is having an electricity connection under the 3[rd] respondent in LT VII A tariff. It is further stated that based on the inspection conducted by Anti Power Theft Squad (APTS) on 12.10.2009, the 3[rd] respondent issued Ext.P2 bill demanding an amount of Rs. 1,46,000/-. The allegation raised against the petitioner is that they installed additional connected load of 4 KW without authorisation of the Board. It is stated by the petitioner that after receiving the above bill, the petitioner filed an appeal before the 3[rd] respondent after paying half of the bill amount. It is further stated that the petitioner was heard by the 3[rd] respondent and thereafter, passed Ext.P6 order rejecting the appeal. Later, the 3[rd] respondent issued Ext.P8 bill stating that they made a mistake on calculation and reduced the bill by half WP(C) NO. 1000 OF 2010 5 of the amount of the earlier bill and shown a calculation that the petitioner already paid Rs.8,699/- in excess to the Board. Thereafter, on 16.12.2009, the 3[rd] respondent issued bill under LT III tariff along with the penal charges as evident by Ext.P12 for an amount of Rs.1,46,505/- which according to the Board is based on the AG's inspection report. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent-Board. 4. The learned counsel for the petitioner submitted that in the light of the subsequent Board Orders, BO (FM) (Genl) No. 2678/2010 (Plg.Com.4439/02/10-11) dated 14.10.2010 and BOD (F) No. 1167/2016 dated 16.4.2016, the petitioner's connection is to be treated as LT VII A. The counsel also submitted that in the light of the judgment of this Court in **Jomy Thomas Manjooran v. KSEB, Tvm and others** [2013 KHC 95], the assessing officer is not authorised to issue a fresh bill as evident by Ext.P12 based on the audit objection. The WP(C) NO. 1000 OF 2010 6 counsel also relied clause VI in Paragraph 31 of the judgment of this Court in **Sulabha Marketing Pvt. Ltd. v. Kerala State Electricity Board** [2017 (3) KHC 563]. The Standing Counsel on the other hand, submitted that there is nothing to interfere with the impugned orders and it is passed in accordance to the rules. 5. This Court considered the contentions of the petitioner and the respondents. This Court perused para 3 of the Board Order, BOD (F) No. 1167/2016 dated 16.4.2016 which reads like this : “Subsequently, Board as per order dated 14.10.2010 implemented the above order issued by the Hon'ble Commission and directed to revise the bills issued to Cellular Towers under LT.III tariff to LT.VII A tariff with effect from 07.01.2010. In the W.P.(C.) No. 34101/2010 filed by India Telecom Infra Limited and others, the Hon'ble High Court directed Kerala State Electricity Board Limited to make revision of tariff with respect to Cellular Mobile Towers with effect from 24.10.2002 onwards (date of tariff order), Board complied with the judgment as per Board Order dated 28.04.2014.” WP(C) NO. 1000 OF 2010 7 6. In the light of the same, it is clear that the petitioner has to be treated as a consumer of LT VII A tariff. Moreover in **Jomy Thomas's** case (supra), this Court observed like this : “11. Conclusions on the basis of the above discussions is that, the 2[nd] respondent is not empowered to revise, reopen or rectify the assessment of penalty once finalised under S.126 of the Electricity Act, 2003, especially on the basis of an instruction issued by the Audit Officers, because of lack of jurisdiction conferred under the Statute enabling such revision, reopening or rectification. Further the 2[nd] respondent cannot impose penalty at the rate applicable to LT VIII Tariff on the basis that unauthorised extension was detected at the time of inspection. Therefore it is held that Ext. P11 is unsustainable in law, and hence the same is hereby quashed.” 7. This point is not considered by the assessing authority while issuing Ext.P12. Moreover, in **Sulabha Marketing Pvt.Ltd.'s** Case (supra), paragraph 31 (clause VI) reads like this: “(vi) However, in the case of a consumer, who is blamed with overdrawal of electricity in excess of sanctioned / connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has WP(C) NO. 1000 OF 2010 8 already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under S.126(6) of the Act can only be equal to twice the fixed charges payable and such consumer cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of services, unless regularisation of such additional connected load or enhancement of contract demand necessitates upgradation of the existing distribution system or enhancement of voltage level of supply.” 8. In the light of the above judgments and in the light of the above mentioned Board orders, the matter is to be reconsidered by the 3[rd] respondent. For facilitating the 3[rd] respondent to reconsider the matter, Exts.P2, P6, P8 and P12 can be set aside. Therefore, this writ petition is allowed in the following manner : - 1) Exts.P2, P6, P8 and P12 are set aside. 2) The 3[rd] respondent is directed to reconsider the matter in the light of Board Orders, BO (FM) (Genl) WP(C) NO. 1000 OF 2010 9 - No. 2678/2010 (Plg.Com.4439/02/10-11) dated - 14.10.2010 and BOD (F) No. 1167/2016 dated 16.4.2016 . - 3) The 3[rd] respondent will also consider the dictum laid down by this Court in **Jomy Thomas's** case (supra) and **Sulabha Marketing' Pvt. Ltd's** case (supra) while deciding the matter. - 4) Before passing final orders, the 3[rd] respondent will give an opportunity of hearing to a representative of the petitioner. SD/- ## **P.V.KUNHIKRISHNAN** ## **JUDGE** SKS WP(C) NO. 1000 OF 2010 10 ## **APPENDIX** **PETITIONER'S EXHIBITS :** **EXT.P1 PHOTOCOPY OF THE MAHAZAR DATED 12.10.2009** **EXT.P2 PHOTOCOPY OF THE BILL FOR AN AMOUNT OF RS.1,46,000/-** **EXT.P3 PHOTOCOPY OF THE REPLY DATED 28.10.2009** **EXT.P4 PHOTOCOPY OF THE CHEQUE DATED 30.10.2009 FOR AN AMOUNT OF RS.68,000/-** **EXT.P5 PHOTOCOPY OF THE ARGUMENT NOTE DATED 27.11.2009** **EXT.P6 PHOTOCOPY OF THE ORDER PASSED BY THE 3RD RESPONDENT** **EXT.P7 PHOTOCOPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT FOR THE PAYMENT OF REGULARISATION APPLICATION DATED 2.12.2009** **EXT.P8 PHOTOCOPY OF THE REVISED BILL ISSUED BY THE 3RD RESPONDENT DATED 31.12.2009** **EXT.P9 PHOTOCOPY OF THE BOARD ORDER NO. GO(FO) NO. 46/2003 (PLG.COM.4206/01) DATED 15.1.2003** **EXT.P10 PHOTOCOPY OF THE TARIFF ORDER DATED 24.10.2002** **EXT.P11 PHOTOCOPY OF THE CONNECTION DIAGRAM OF A STANDARD TOWER WITH FUNCTIONS ETC.** **EXT.P12 PHOTOCOPY OF THE BILL DATED 16.12.2009 ISSUED BY THE 3RD RESPONDENT** **EXT.P13 PHOTOCOPY OF BOARD ORDER NO. DPCL-GI/182/2007 NO. 368/2000 DATED 7.2.2008 ISSUED BY THE 1ST RESPONDENT** **EXT.P14 PHOTOCOPY OF THE JUDGMENT DATED 10.2.2006 IN OP NO. 26408/2000** **EXT.P15 PHOTOCOPY OF THE JUDGMENT IN RP 974 OF 2006 IN OP NO** WP(C) NO. 1000 OF 2010 11 **26408/2000** **EXT.P16 PHOTOCOPY OF THE OWNERSHIP CERTIFICATE DATED 10.11.2009 EXT.P17 PHOTOCOPY OF THE INTERIM ORDER DATED 8.7.2008 IN WPC NO. 19298/2008** **RESPONDENT'S EXHIBITS : NIL**