R. Shaji v. Kerala State Electricity Board & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE B.P.RAY MONDAY, THE 16TH DAY OF JULY 2012/25TH ASHADHA 1934 WP(C).No. 12724 of 2012 (M) --------------------------- PETITIONER: ------------- R.SHAJI, MANAGING TRUSTEE, S.R.EDUCATIONAL & CHARITABLE TRUST, S.R.BUILDING, VARKALA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.ANIL K.NARENDRAN RESPONDENTS: -------------- 1. KERALA STATE ELECTRICITY BOARD - VYDYUTHI BHAVANAM, PATTOM PALACE P.O. THIRUVANANTHAPURAM-695 004, REP. BY ITS SECRETARY. 2. CONSUMER GRIEVANCE REDRESSAL FORUM KOTTARAKAKRA, 2ND FLOOR, VYDYUTHI BHAVANAM KERALA STATE ELECTRICITY BOARD, KOTTARAKKARA, KOLLAM DISTRICT-691 506. 3. THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, THIRUVANANTHAPURAM (URBAN) KERALA STATE ELECTRICITY BOARD, POWER HOUSE BUILDING, THIRUVANANTHAPURAM-695 036. 4. THE ASSISTANT ENGINEER ELECTRICAL SECTION, VARKALA KERALA STATE ELECTRICITY BOARD, VARKALA THIRUVANANTHAPURAM DISTRICT-695 141. BY ADV. SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12724 of 2012 (M) : Page numbers : **APPENDIX** ## **PETITIONER'S EXHIBITS :** EXHIBIT P1- TRUE COPY OF COMMUNICATION DATED 23.3.2012 OF THE CENTRAL GOVERNMENT RETURNING APPLICATIONS SUBMITTED FOR STARTING MDS COURSE IN SRI SANKARA DENTAL COLLEGE, FOR THE ACADEMIC YEAR 2012-13. EXHIBIT P2- TRUE COPY OF THE SITE MAHAZAR PREPARED ON 22.3.2012 BY THE SUB ENGINEER, ELECTRICAL SECTION, VARKALA, ALONG WITH ITS TRUE ENGLISH TRANSLATION. EXHIBIT P3- TRUE COPY OF REVISION BILL DATED 3.4.2012 ISSUED BY THE 4TH RESPONDENT FOR RS.6,46,587/- ALONG WITH ITS TRUE ENGLISH TRANSLATION. EXHIBIT P4- TRUE COPY OF REVISION STATEMENT DATED NIL PREPARED BY THE 4TH RESPONDENT ENCLOSED ALONG WITH EXHIBIT P3 REVISION BILL. EXHIBIT P5- TRUE COPY OF PROVISIONAL BILL DATED 3.4.2012 ISSUED BY THE 4TH RESPONDENT DEMANDING A SUM OF RS.4,59,296/- ALONG WITH ITS TRUE ENGLISH TRANSLATION. EXHIBIT P6- TRUE COPY OF COVERING LETTER DATED NIL OF THE 4TH RESPONDENT FORWARDING EXHIBITS P2 TO P5 TO THE PETITIONER. EXHIBIT P7- TRUE COPY OF OBJECTION DATED 9.4.2012 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT REGARDING THE DEMAND MADE IN EXHIBIT P3 PROVISIONAL BILL. EXHIBIT P8- TRUE COPY OF OBJECTION DATED 9.4.2012 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT REGARDING THE DEMAND MADE IN EXHIBIT P5 PROVISIONAL BILL. EXHIBIT P9- TRUE COPY OF ORDER DATED 4.5.2012 ISSUED BY THE 4TH RESPONDENT, UPHOLDING THE PROVISIONAL DEMANDS MADE IN EXHIBIT P3 AND P5 BILLS. EXHIBIT P10- TRUE COPY OF ORDER DATED 18.3.2009 OF THE KERALA STATE ELECTRICITY REGULATORY COMMISSION IN PETITION NO. TP 59/2008. EXHIBIT P11- TRUE COPY OF DEMAND NOTICE DATED 10.5.2012 ISSUED BY THE 4TH RESPONDENT FOR A SUM OF RS.95,857/- . EXHIBIT P12-TRUE COPY OF TEST REPORT DATED 12.06.2012 PREPARED BY MARIYAM ENERGY CONSERVATION & AUDIT SPECIALISTS (MECAS), KOWDIAR, THIRUVANANTHAPURAM. ## **RESPONDENTS' EXHIBITS** : NIL //True Copy// P.A to Judge. ## **B.P. RAY, J.** ## **- - - - - - - - - - - - - - - - - W.P.(C) No. 12724 of 2012** **- - - - - - - - - - - - - - - - Dated this the 16[th] day of July, 2012.** ## **JUDGMENT** The petitioner who is the Managing Trustee of S.R. Educational & Charitable Trust, has filed this writ petition with the following prayers: - 1) Call for the records leading to Exts.P2 to P6, P9 and P11 issued by the 4[th] respondent and issue a writ of certiorari or any other appropriate writ, order or direction quashing the same. - 2) Declare that even if the petitioner has to be invoiced under tariff VIIA, the respondents can demand payment of arrears due in change of tariff, only from the date of a valid inspection being conducted by the 4[th] respondent. - 3) Declare that, the claim for arrears from 12/2007 made in Exts.P3 and P9 is barred by limitation, in view of the period of limitation prescribed under Section 56(2) of the Electricity Act, 2003. - 4) Stay the operation and all further proceedings pursuant to Exts.P9 and P11 including any disconnection of power supply to the premises of Sri. Sankara Dental College, with consumer No.14499. 2. On 22.03.2012, an inspection was conducted at Sri Sankara Dental College by the Regional Audit Officer, Thiruvananthapuram (urban) of the KSEB and the Sub Engineer attached to Electrical Section, Varkala. Based on Ext.P2 site mahazar, Ext.P3 revised bill was issued changing the tariff from LT -VIA to LT -VIIA with effect from 01.12.2007. W.P.(C) No. 12724/2012 -:Page numbers:- 3. Shri. Anil K. Narendran, the learned counsel for the petitioner submits that the claim made by the KSEB is hopelessly barred by limitation, and change of tariff will not come within the meaning of Section 126 of the Electricity Act, 2003, and the inspection should be conducted by the Assessing Officer. The learned counsel for the petitioner placed reliance upon the decision reported in AIR 2007 Calcutta 298 – **Narayan Chandra** ## **Kundu v. State of West Bengal.** 4. These contentions can be raised by filing appropriate application before the Consumer Grievance Redressal Forum. Therefore, I decline to interfere at this stage. It is open to the petitioner to challenge Ext.P3 bill before respondent No.2, if so advised. If such an application is filed within two weeks from today, the 2[nd] respondent shall dispose of the same within three months thereafter after giving an opportunity of hearing to the petitioner as well as 4[th] respondent. During the pendency of the application before the 2[nd] respondent, the impugned demand shall not be executed. 5. He further submits that based on the inspection conducted on 22.03.2012, Ext.P5 provisional bill was issued to the petitioner demanding an amount of `4,59,296/- towards fixed W.P.(C) No. 12724/2012 -:Page numbers:- and current charges for the additional connected load of 126 KW alleged to have been detected in the site inspection, and the petitioner, with the assistance of a reputed Energy Conservation and Audit Specialists viz., Mariam Energy Conservation & Audit Specialists , has assessed the connected load of the dental chairs and found that total connected load is only 17,068 watts. In the test report it is specifically stated as follows: ## “Recorded Results: |“|Recorded Results:||||| |---|---|---|---|---|---| |**_Sl._**<br>**_No._**|**_Location_**|**_Maximum_**<br>**_Power Drawn_**|**_Minimum_**<br>**_Power_**<br>**_Drawn_**|**_Average_**<br>**_Power_**<br>**_Drawn_**|**_Remarks_**| |1|Minor OT – Oral<br>Surgery Department|171.667 watts|163.333<br>watts|166.667<br>watts|No suction<br>unit is fitted<br>to the chair.| |2|Oral<br>Surgery<br>Department|600 watts|571.667<br>watts|581.667<br>watts|Additional<br>Suction Unit<br>is fitted to<br>the Chair.| |3|Prosthetic<br>Department|178.333 watts|171.667<br>watts|175 watts|No suction<br>unit is fitted<br>to the chair.| Number of chairs w/o high vacuum suction unit in the ground floor : 20 Nos. Number of chairs with high vacuum suction unit in the ground floor : 1No. Number of chairs w/o high vacuum suction unit in the first floor : 35 Nos. Number of chairs with high vacuum suction unit in the first floor : 0 No. Number of chairs w/o high vacuum suction unit in the Second floor : 37 Nos. Number of chairs with high vacuum suction unit in the Second floor : 0 No. W.P.(C) No. 12724/2012 -:Page numbers:- Total Number of Chairs w/o. High vacuum suction unit Maximum Power that would be drawn : 92x179 watts Total Number of Chairs with high vacuum suction unit Maximum Power that would be drawn: 1x600 watts Maximum Power that would be drawn by 93 chairs = 92 Nos. = 16,468 watts = 1 No. = 600 watts = 16,468 + 600 watts = 17,068 watts.” 6. The test report was prepared subsequent to the inspection. The learned Standing Counsel for KSEB submits that there is alternative remedy available to the petitioner. Let the petitioner file an appeal before the 3[rd] respondent within two weeks from today. If such an appeal is filed, the appellate authority shall re-examine the matter without being influenced by the order passed by the assessing authority. The petitioner shall raise all relevant contentions available to him before the assessing authority including the jurisdiction of the assessing authority particularly when the inspection was not conducted by the assessing authority. In pursuance to the interim order dated 01.06.2012, the petitioner has deposited `2,00,000/- without prejudice to his claim. Let the petitioner deposit another ` 30,000/- along with the memorandum of appeal within two weeks from today. If the amount is deposited, the appellate authority W.P.(C) No. 12724/2012 -:Page numbers:- shall make an enquiry regarding the power measurement made by the authorities taking into consideration Ext.P12 and pass appropriate orders within three months thereafter. During the pendency of the appeal, recovery for the balance amount of `2,59,296/- shall remain stayed. This writ petition is disposed of as above. **sd/- B.P. RAY, JUDGE.** rv W.P.(C) No. 12724/2012 -:Page numbers:-