M/s Mar Basil Granites and Metals v. Kerala State Electricity Board and Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 7[TH]DAY OF MARCH 2023 / 16TH PHALGUNA,1944 ``` ## **`WP(C) NO. 7730 OF 2023`** ## **`PETITIONER/S:`** ``` M/S MAR BASIL GRANITES AND METALS CHATHURANGAPARA, UDUMBANCHOLA, IDUKKI, PIN-685554 REPRESENTED BY ITS MANAGING PARTNER K.C GEORGE, AGED 56, S/O K.V.CHACKO, KEERAMKUNNEL HOUSE, KULAPPARACHAL P.O, IDUKKI, PIN -685619, PIN - 685554 BY ADVS. LAL K.JOSEPH T.A.LUXY P.MURALEEDHARAN (THURAVOOR) SURESH SUKUMAR P.K.SALEEM ANZIL SALIM ``` ## **`RESPONDENT/S:`** ``` 1KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN-695004 REPRESENTED BY ITS SECRETARY, PIN - 695004 2THE DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD ELECTRICAL CIRCLE, VYDYUTHI BHAVANAM, THODUPUZHA -PIN 685584 3THE EXECUTIVE ENGINEER ELECTRICAL DIVISION, KATTAPPANA, PIN-685508 4THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SUB DIVISION, NEDUMKANDOM, PIN - 685553 5THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD ELECTRICAL SUB DIVISION, UDUMANCHOLA, PIN-685553 ``` ``` WP(C) NO. 7730 OF 2023 ``` ``` 2 ``` ``` 6SUB ENGINEER KERALA STATE ELECTRICITY BOARD ELECTRICAL SUB DIVISION, UDUMANCHOLA, PIN-685553 ``` ``` SRI RIJI RAJENDRAN SC ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON07.03.2023,THECOURTONTHESAMEDAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 7730 OF 2023 ``` ``` 3 ``` ## **JUDGMENT** M/s Mar Basil Granites and Metals, the petitioner herein is a partnership firm engaged in mining and quarrying. They have approached this Court seeking to quash Ext.P4 final order passed by the 4th respondent assessing an amount of Rs.17,07,648/- as penalty charges under Section 126 of the Electricity Act, 2003. 2. The petitioner asserts that for the purpose of running their activities, they have obtained a High Tension Connection from the 1st respondent. The records would reveal that the authorized connected load is 145KW, and the Contract demand under HT1A Tariff is 150KVA. 3. While so, the Anti-Power Theft Squad (APTS) conducted an inspection of the premises of the petitioner and Ext. P1 mahazar was prepared on 14.12.2022, as per which it was found that the petitioner has installed an additional load of 59 KW in excess of the sanctioned load of 145KW. The petitioner asserts that thereafter, Ext.P2 Provisional Assessment Order was issued by the 4th respondent demanding a penalty for unauthorized connected load. Being aggrieved, the petitioner is stated to have submitted Ext.P3 objection. According to the petitioner, the 4th respondent has thereafter, without properly considering Ext. P3, ``` WP(C) NO. 7730 OF 2023 ``` ``` 4 ``` issued Ext.P4 final order assessing him a sum of Rs. 17,07,648/- as penalty by invoking Section 126 of the Electricity Act, 2003 and Supply Code, 2014. The said order is under challenge. 4. The learned counsel appearing for the petitioner submits that the final assessment order, as well as the orders preceding the same, cannot be sustained under law. Referring to Ext. P4, it is submitted that the sanctioned load was much higher than what is calculated by the 2nd respondent. It is further contended that the actual connected load found at the time of inspection was far below the sanctioned load. It is further submitted that energization approval has been granted by the Electrical Inspectorate, and once such permission has been granted, there was no justification on the part of the respondents in demanding additional charges on the premise that the petitioner had unauthorisedly used energy. It is further submitted that the penalty assessed by the 4th respondent is based on connected load, whereas it ought to have been on the basis of the demand charges as the petitioner herein is a High Tension Consumer. 5. The learned standing counsel submitted that the contentions advanced by the petitioner could not be sustained under law. Relying on the observations of the Hon’ble Supreme Court in **Executive Engineer,** ``` WP(C) NO. 7730 OF 2023 ``` ``` 5 ``` **Southern Electricity Supply Company of Orissa Limited (Southco), and Another. v. Sri Seetaram Rice Mill** [(2012) 2 SCC 108], it is submitted that the remedy open to the petitioner is to prefer an appeal by invoking Section 127 of the Electricity Act by remitting 50% of the assessed amount and in that view of the matter, this Court will not be justified in interfering under Article 226 of the Constitution of India. Reliance is also placed on **Radha Krishan Industries v. State of Himachal Pradesh** [AIR 2021 SC 2144], and it is urged that 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. The learned counsel would then submit that under Regulation 99 of the Supply Code, when the petitioner requires enhancement of connected load or contract demand, the consumer is required to apply to the licensee, and the procedure stipulated therein has to be followed. It is submitted that the mere fact that the Electrical Inspector has granted energization approval would not enable the consumer to utilize enhanced energy without executing a supplementary agreement with the licensee. The learned counsel would also refer to the law laid down by the Supreme Court in **Kerala State** ``` WP(C) NO. 7730 OF 2023 ``` ``` 6 ``` ## **Electricity Board and Ors. v. Thomas Joseph and Ors.** [2022 SCC Online SC 1737], and it is urged that Tariff includes both fixed charges and energy charges, and once the Assessing Officer arrives at a conclusion that the unauthorized use of electricity has taken place, he is obliged to make the assessment charge equal to twice the tariff applicable, which includes the dues payable towards the energy charges as well. 6. I have considered the submissions advanced. 7. Though Sri. Lal K. Joseph, 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. This rule of exhaustion of statutory remedies is a rule of policy, convenience, and discretion. 8. 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 ``` WP(C) NO. 7730 OF 2023 ``` ``` 7 ``` 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 proposed against them shall be deferred for a period of four weeks. This writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 7730 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 7730/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE MAHAZAR DATED 14/12/2022 PREPARED BY THE 6TH RESPONDENT. ``` ``` Exhibit P2TRUE COPY OF THE PROVISIONAL ASSESSMENT ORDER BEARING NO AEE/ESD/NDM /DBI17/2022-2023/125 DATED 12/01/2022 ISSUED BY THE 4TH RESPONDENT ALONG WITH PROVISIONAL ASSESSMENT BILL. ``` ``` Exhibit P3TRUE COPY OF THE OBJECTION DATED 19/01/2023 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT. ``` ``` Exhibit P4TRUE COPY OF THE FINAL ORDER NO AEE/ESD/NDM/DB17/2022-23/138 DATED 6/2/2023 ISSUED BY THE 4TH RESPONDENT. ```