NCS Auto Hub Pvt. Ltd. v. Kerala State Electricity Board Ltd. and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944`** ## **`WP(C) NO. 39689 OF 2022`** ## **`PETITIONER:`** ``` NCS AUTO HUB PVT. LTD. ENNIKKATTIL ESTATE, NEAR KSRTC BUS STAND, THIRUVALLA, PATHANAMTHITTA-689101, REPRESENTED BY ITS ADMIN EXECUTIVE, NIRMAL TOM THOMAS. ``` ``` BY ADVS. V.KRISHNA MENON P.VIJAYAMMA J.SURYA PRINSUN PHILIP ``` ## **`RESPONDENTS:`** ``` 1KERALA STATE ELECTRICITY BOARD LTD. VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM -695004, REPRESENTED BY ITS SECRETARY. 2KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, EDAPPALLY, KOCHI - 682024, REPRESENTED BY ITS ASSISTANT ENGINEER. 3ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SUB DIVISION, PALARIVATTOM, KOCHI -682024. 4DEPARTMENT OF ELECTRICAL INSPECTORATE, OFFICE OF THE DEPUTY CHIEF ELECTRICAL INSPECTOR, 3RD FLOOR, REVENUE TOWER, PARK AVENUE, KOCHI – 682011. SRI.RIJI RAJENDRAN – SC KSEB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 39689 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Inter alia alleges that the petitioner is willing to pay the fixed charges but not the penal energy charges which is not sustainable in view of the Division Bench of Judgment of this Court in _**Sulabha Marketing (P) Ltd.**_ v. _**Kerala Ste Electricity Board, TVM and Others**_ [217 (3) KHC 563]. 2. Issue notice before admission. Sri.Riji Rajendran accepts notice for the respondents. 3. Petitioner is an authorised dealer of cars of various manufactures in districts Ernakulam, Kottayam, Thrissur etc. For the purpose of carrying on the activity, had taken a property on lease by lease deed dated 11.12.2020 Ext.P1 and the building had already an electric connection in the name of the building owner with consumer No.14293 and as per the terms and conditions of the lease deed, petitioner had undertaken liability to pay the consumption charges of the electricity. It had LT VIIA tariff with load of less than 100 KW. An application dated 05.08.2021 Ext.P4 ``` WP(C) NO. 39689 OF 2022 ``` ``` 3 ``` was submitted for increasing the load by remitting requisite fee of Rs.15,275/- as evident from the receipt of even date. On the basis of the aforementioned, the 4[th] respondent, though were required to take action promptly, after delay of fourteen months, accorded the approval on 07.10.2022 for the installation of 160 KVA transformer, 180 KVA DG set and connected electronics in the premises reflected in Ext.P1 lease deed. 4. Learned counsel appearing on behalf of the petitioner submitted that during the interregnum on 27.09.2022 officials of the Electricity Department inspected the premises of the petitioner and served notice of the provisional assessment on 29.09.2022 alleging an additional load of 67605 watts commanding the petitioner to pay sum of Rs.8,08,298/- as per the provisions of Section 126 of the Electricity Act, 2003. The aforementioned assessment was appealed by filing a reply and the concerned officer after affording the personal hearing passed impugned final assessment order dated 08.11.2022. Though the aforementioned order is appealable, the petitioner has approached this Court straight away on the ground that the petitioner once has ``` WP(C) NO. 39689 OF 2022 ``` ``` 4 ``` undertaken to pay the penal fixed charges but is not liable to pay penal energy charges in terms of the Division Bench judgment of this Court in _**Sulabha Marketing (P) Ltd.**_ v. _**Kerala Ste Electricity Board, TVM and Others**_ [217 (3) KHC 563]. 5. On the other hand, learned counsel appearing on behalf of the respondents submits that the penal energy charges have been charged on account of the overdrawing of the electricity, petitioner is liable to pay as it is in terms and conditions of the Electricity Supply Code and the Act as well. 6. I have heard the learned counsel for the parties and appraised the paper book. 7. The controversy with regard to the payment of the penal charges in respect of a consumer who has been found to be drawing an unauthorised use of electricity came to be debated upon by the Division Bench of this Court in paragraphs 30 and 31(vi) was held as under: “30. As held by the Apex Court in Seetharam Mill's case (supra), in the case of unauthorised use of electricity, the blame on the consumer is in relation to excess load while ``` WP(C) NO. 39689 OF 2022 ``` ``` 5 ``` the liability is to pay on a different tariff for the period prescribed in law and in terms of the order of assessment passed by the assessing officer under the provisions of Section 126 of the Act. In that view of the matter, 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 already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under Section 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 necessitate upgradation of the existing distribution system or enhancement of voltage level of supply. 31.(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 already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under Section 126(6) of the Act can only be equal to twice the fixed ``` WP(C) NO. 39689 OF 2022 ``` ``` 6 ``` 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. The findings referred to above leaves no manner of doubt that once the respondent electricity department have already charged the tariff for the actual consumption charges, the person who has been found to be drawing an extra load cannot be saddled with the liability of penal charges for the same very consumption, though the competency of the Electricity Department to charge penal fixed charges has been upheld. Since the petitioner had already undertaken to pay the fixed charges and therefore have approached this Court without availing the remedy, thus the request of the petitioner is fair and honest. Accordingly, the final assessment order dated 08.11.2022 Ext.P9 is modified to the extent that petitioner shall not be liable to pay penal energy charges reflected in Ext.P9 of Rs.5,79,818/- and but shall be liable to pay Rs.2,28,480/-. In case the petitioner deposits the amount ``` 7 ``` ## **`WP(C) NO. 39689 OF 2022`** within a period of one week from today, the penal action of disconnection shall not take place, otherwise the respondents will be at liberty to take action in accordance with law. Sd/- **AMIT RAWAL JUDGE** nak ``` 8 ``` ## **`WP(C) NO. 39689 OF 2022`** ## **`APPENDIX OF WP(C) 39689/2022`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE LEASE AGREEMENT DATED 11.12.2020` - `Exhibit P2 TRUE COPY OF THE RECEIPT ISSUED FOR THE ELECTRICITY BILL FOR THE MONTH OF OCTOBER, 2022 REMITTED BY THE 1ST PETITIONER ON BEHALF OF THE 2ND PETITIONER DATED 25.10.22` - `Exhibit P3 TRUE COPY OF THE RECEIPT ISSUED FOR THE ELECTRICITY BILL FOR THE MONTH OF NOVEMBER, 2022 REMITTED BY THE 1ST PETITIONER ON BEHALF OF THE 2ND PETITIONER DATED 25.11.22 & 27.11.22.` - `Exhibit P4 TRUE COPY OF THE RECEIPT DATED 5.8.2021. Exhibit P5 TRUE COPY OF THE RECEIPT DATED 5.5.2022. Exhibit P6 TRUE COPY OF THE APPROVAL ORDER ISSUED BY THE FOURTH RESPONDENT DATED 7.10.2022.` ``` Exhibit P7TRUE COPY OF THE PROVISIONAL ASSESSMENT ORDER DATED 29.9.2022 Exhibit P8TRUE COPY OF THE APPEAL DATED 14.10.2022 Exhibit P9TRUE COPY OF THE FINAL ASSESSMENT ORDER DATED 8.11.2022 ```