M/S Perumalil Granites Arunootti Mangalam Po v. Kerala State Electricity Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** ## **WP(C).No.31474 OF 2013(H)** ## **PETITIONER/S:** **M/S.PERUMALIL GRANITES ARUNOOTTIMANGALAM PO, KOTTAYAM DISTRICT, REPRESENTED BY THE MANAGING PARTNER ALEX P.CYRIAC** **BY ADVS.** **SRI.ROY CHACKO SRI.ROMY CHACKO SRI.K.C.VINCENT** ## **RESPONDENT/S:** - **1 THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN PATTAM PALACE PO, THIRUVANANTHAPURAM-695 001.** - **2 THE DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD, KOTTAYAM 686 001** - **3 THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB, THALAYOLAPARAMBU KOTTAYAM DISTRICT 686 001** - **4 THE ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, KSEB, KURAVILANGADU KOTTAYAM DISTRICT 686 001.** - **5 THE SUB ENGINEER, ELECTRICAL SUB DIVISION, KSEB, KURAVILANGADU KOTTAYAM DISTRICT 686 001.** - **6 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF POWER THIRUVANANTHAPURAM 695 001.** **BY ADVS.** **SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD SRI.N.SATHEESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 31474/13 2 ## **JUDGMENT** The petitioner is stated to be a partnership firm, operating Crusher Unit enjoying a Low Tension electric supply under LTIV Industrial Tariff. 2. According to the petitioner, on 15.11.2008, an inspection was conducted by the Anti Power Theft Squad (APTS) of the Kerala State Electricity Board (KSEB for short) in their Crusher Unit, who found that 53 KW was additionally installed over and above the sanctioned load. They say that a provisional assessment bill was thereupon raised for an amount of Rs.3,34,700/-, which was challenged by filing a Statutory Appeal; and that, on the same being dismissed, the Appellate Order was assailed by them through WP(C)No.21674/2009 before this Court. 3. The petitioner says that when this Writ Petition was pending, they removed all the WPC 31474/13 3 unauthorised machines and brought down the load to the permissible limits and consequently, that the KSEB reconnected their electric supply after being convinced that the load was within the sanctioned limit. 4. The petitioner submits that the aforementioned Writ Petition was disposed of by this Court through a judgment, dated 04.06.2012, with directions to the KSEB to revise the provisional bill in terms of the judgment of the Hon'ble Supreme Court in **Executive Engineer and another v. Sitaram Rice Mill [2010(4) KHC 1];** and that on such bill being raised, the petitioner paid off the entire amounts due under it. They say that in spite of this, the KSEB has raised another bill, styled as a short assessment bill, a copy of which has been placed on record as Ext.P3 and alleges that this is illegal, unlawful and unconstitutional, particularly when the earlier demands have WPC 31474/13 4 already been fully satisfied. They, therefore, pray that Ext.P3 be set aside. 5. In response to the afore submissions of Sri.Vincent K.C.-learned counsel for the petitioner, learned Standing Counsel for the KSEB-Sri.N.Satheesh, submits that the foundational assertion of the petitioner, that the electric supply to their Unit was restored after the KSEB had convinced themselves that the additional load had been removed by them, is totally flawed because the reconnection was not granted to the petitioner for such reason but on account of an interim direction of this Court dated 31.07.2009 in WP(C)No.21674/2009. The learned Standing Counsel says that the KSEB reconnected the supply obeying the directions of this Court implicitly, but that the excess connected load continued to exist in the petitioner's Unit, contrary to their present assertions. He, therefore, says that the short WPC 31474/13 5 assessment was merely a continuation of the earlier assessment, because the petitioner continued to use the machines without reducing the load and therefore, that the action of the KSEB cannot be found faulted. He, therefore, prays that this Writ Petition be dismissed. 6. In answer to this, Sri.Vincent K.C. submits that going by the provisions of the Terms and Conditions of Electric Supply, 2005 and in particular Regulation 51(2) thereof, the electric supply could not have been reconnected by the KSEB without the additional load having been removed. He says, therefore, that it has to be presumed by this Court that all additional load had been removed at the relevant time; however, conceding that the petitioner does not have any documentary evidence in substantiation of this. He says that, as has been stated in the reply affidavit filed on record, reconnection was not made pursuant to the directions of this WPC 31474/13 6 Court alone, but also on the KSEB having convinced themselves that the objected load had been removed. He then adds that the fact that the KSEB does not impel an allegation against the petitioner that, on account of the additional load there has been any damage to the transformer, would clearly indicate that additional load had been removed. 7. When I assess the afore submissions, it is indubitable that the assertions of the petitioner are based purely on speculations and conjunctures. Even though they contend that the electric supply was reconnected in the year 2009 because the KSEB was convinced that the additional load had been removed, the records of WP(C)No.21674/2009 would clearly indicate that this Court had, by an order dated 31.07.2009, ordered such reconnection without any condition being attached to it. Obviously, therefore, the KSEB was bound to reconnect the supply without WPC 31474/13 7 seeking any action from the side of the petitioner and therefore, the assertion of the petitioner, that the load had been removed before such reconnection was given, cannot be accepted except with a pinch of salt. 8. That apart, it is now well settled that the obligation to remove the additional load is on the consumer and consequently, it is up to them to ensure that sufficient documents and materials are placed on record to establish this fact. However, in the case at hand, the petitioner concede that they have not been able to produce any document on record to show that additional load had been removed, but continue to assert that on account of the mere factum of reconnection, it should be presumed by this Court that there was no additional load thereafter and that it had been removed. 9. I am afraid that I cannot accede to this contention since it is based purely on WPC 31474/13 8 surmises; and while this Court acts under Article 226 of the Constitution of India, it will not be justified for me to accept such inputs and act upon it as if they are legally bound to be presumed. In the afore circumstances, I have no other option but to dismiss this Writ Petition; however, leaving full liberty to the petitioner to invoke and pursue other alternative remedies against the impugned bill, as may be available to them, in terms of law. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 31474/13 9 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 EXT.P1 - TRUE COPY OF THE JUDGMENT DATED 4-6-2012 IN WPC.NO.2167/2009 EXHIBIT P2 EXT.P2 - TRUE COPY OF THE ORDER DATED 28-11-2012 ISSUED TO THE PETITIONER EXHIBIT P3 EXT.P3 - TRUE COPY OF THE NOTICE DATED 7-2-2013 ISSUED BY THE ELECTRICITY BOARD TO THE PETITIONER EXHIBIT P4 EXT.P4 - TRUE COPY OF NOTICE DATED 31-8-2013 ISSUED TO THE PETITIONER EXHIBIT P5 EXT.P5 - TRUE COPY OF THE NOTICE DATED 5-10-2013 ISSUED TO THE PETITIONER EXHIBIT P6 TRUE COPY OF COMMUNICATION ISSUED BY THE EXECUTIVE ENGINEER, VAIKOM DATED 03.07.2019.