Royal Educational Foundation Trust v State of Kerala, Kerala State Electricity Board, Kerala State Electricity Regulatory Commission and the Assistant Engineer, Electrical Section, Chalissery

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936 WP(C).No. 2127 of 2010 (M) --------------------------- PETITIONER: --------------- ROYAL EDUCATIONAL FOUNDATION TRUST, REPRESENTED BY ITS SECRETARY, IRON HILLS CHALISERY PALAKKAD DISTRICT. BY ADV. SRI.S.RAMESH BABU RESPONDENTS: -------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT POWER DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VAIDYUTHI BHAVANAM THIRUVANANTHAPURAM. 3. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION, REPRESENTED BY ITS SECRETARY THIRUVANANTHAPURAM. 4. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, CHALISSERY. R3 BY ADV. SRI.ANEESH JAMES,SC,KSEB REGULATORY COM R3 BY ADV. SRI.S.SUJIN, SC, ELECTRICITY REGULATORY COMMISSION R1 BY GOVERNMENT PLEADER SHRI.M.A.ABDUL SHUKOOR R2 & 4 BY SR. ADV SHRI. P.SANTHALINGAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN WPC 2127/2010 ## PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE REGULATIONS PRESCRIBED BY THE DENTAL COUNCIL OF INDIA EXT.P2: -DO- OF PERMISSION FOR RUNNING THE INSTITUTION FROM THE DENTAL COUNCIL OF INDIA EXT.P3: -DO- OF THE MAHAZAR DT. 14.8.2008 EXT.P4: -DO- OF THE PROVISIONAL INVOICE DT.22.10.2008 EXT.P4A: -DO- CALCULATION STATEMENT EXT.P5: -DO- OF THE OBJECTION DT.23.10.2008 EXT.P5A: -DO- OF THE ADDITIONAL OBJECTION DT.29.10.2008 EXT.P6: -DO- ORER DT.26.11.2008 EXT.P7: -DO- INVOICE DT.27.11.2008 EXT.P8: -DO- APPEAL MEMORANDUM EXT.P9: -DO- APPLICATION DT.28.3.2009 EXT.P10: -DO- ORDER OF THE 2ND RESPONDENT DT.16.12.2009 EXT.P11: -DO- INVOICE DT.31.12.2009 ALONG WITH THE CALCULATION STATEMENT EXT.P12: -DO- OF THE REPRESENTATION DT.4.1.2010 EXT.P13: -DO- REPLY DT.13.1.2010 EXT.P14: -DO- OF THE BOARD ORDER DT.7.2.2008 EXT.P15: -DO- OF APPLICATION FOR CONVERSION TO HT CONNECTION FILED BY THE PETITIONER EXT.P16: -DO- OF THE RECEIPT EVIDENCING THE PAYMENT OF FEE PAID BY THE PETITIONER EXT.P17: -DO- OF THE LETTER DT.13.11.2009 ISSUED BY THE OFFICE OF ELECTRICAL INSPECTOR EXT.P18: -DO- OF THE LETTER DT.20.11.2009 ISSUED BY THE PETITIONER EXT.P19: -DO- OF THE LETTER DT.28.1.2010 SUBMITTED BY THE PETITIONER EXT.P20: -DO- OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DT.3.2.2010 EXT.P21: -DO- OF THE REQUEST FILED BY THE PETITIONER DT.12.2.2010 EXT.P22: -DO- OF THE ORDER OF THIS HON'BLE COURT IN IA NO:13890/2009 DT.13.11.009 IN WRIT PETITION NO:28585/08 EXT.P23: -DO- OF THE LETTER DT.4.5.2010 OF EXECUTIVE ENGINEER, ELECTRICAL DIVISION, SHORNUR JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN,J ------------------------------W.P(C) NO.2127 OF 2010 ---------------------------------Dated this the 24[th] March, 2014. ## JUDGMENT The petitioner is a society conducting a self financing institution by name Royal Dental College. The petitioner is functioning in its own premises at the address shown in the writ petition. The petitioner has an electric connection with consumer No:12788. The electric connection was provided in the year 2003 after completing the construction of the different buildings that are located within the same campus. The petitioner is being billed in accordance with the LTVIB tariff. The buildings include an administrative block, separate hostels for ladies and gents, clinical building and staff quarters. The petitioner has been paying the charges in respect of the electricity consumed, regularly and without any delay or default. WPC 2127/2010 2 2. While so, an inspection of the premises of the petitioner was conducted on 14.10.2008 by the Assistant Engineer of the Anti Power Theft Squad ('APTS' for short) along with the Sub Engineer of the concerned section. Ext.P3 is the mahazar prepared at the time of inspection. It was found on inspection that, the petitioner had connected load in excess of what was sanctioned to him. It was also found that, the petitioner had provided connections to the other buildings within the campus, from the electric connection that was initially provided to him. Alleging that, the petitioner had taken unauthorised extension to the different buildings in the premises and also alleging that there was unauthorised connected load, action was initiated against him under Section 126 of the Electricity Act, 2003 (the 'Act' for short). 3. Accordingly, Ext.P4 provisional assessment order dated 22.10.2008 was issued to the petitioner. The petitioner immediately preferred Exts.P5 and P5(a) objections to the provisional assessment. It was pointed out that, the WPC 2127/2010 3 establishment had been provided with only one electric connection. The said connection was not meant for any particular building. It was meant for providing electric connection to all the buildings that are located within the same premises. For the said reason, the electricity meter was not installed in any particular building but, near the transformer, within the premises but, outside the buildings. If the connection had been provided to any particular building, it is contended that the electricity meter would have been located inside such building. It is the further contention of the petitioner that he has installed a generator having a capacity of 82.5KVA. The additional load that was detected was connected only to the generator and therefore, the additional appliances were being worked with the power from the generator, according to the petitioner. Errors in the calculation of the alleged unauthorised connected load were also pointed out in the objections. 4. The fourth respondent without considering the WPC 2127/2010 4 objections of the petitioner in the proper perspective, issued Ext.P6, the final order under Section 126 of the Act on 27.11.2008. As per the final order, the bill that was proposed earlier has been reduced. Aggrieved by Ext.P6, the petitioner preferred Ext.P8 appeal to the Deputy Chief Engineer. The petitioner also submitted Ext.P9 application seeking the issue of a direction to produce the service agreement entered into with the petitioner. However, no orders were passed on the said petition. The Appellate Authority has thereafter disposed of the appeal by Ext.P10 order dated 16.12.2009 modifying the assessment already made and directing a revised bill to be issued to the petitioner. Accordingly, the petitioner has been served with Ext.P11 bill. This writ petition is filed challenging Exts.P6, P10 and P11. 5. According to Shri.S.Ramesh Babu who appears for the petitioner it is not necessary for each building in a particular premises to be energised by providing separate service connections. The term 'premises' takes within its meaning, WPC 2127/2010 5 all the buildings that are situate within a particular compound. Reliance is placed on Regulation 2(1)(ee) of the Kerala Electricity Supply Code, 2005. The petitioner had been granted only one connection to which energy is being supplied through the transformer that has been installed in the compound of the petitioner's establishment. The fact that the electricity meter has been installed close to the transformer and not located within any of the buildings, proves positively that the connection was meant for all the buildings of the establishment. According to the counsel, the total connected load that has been detected is shown as 196KW by Ext.P4(a). The authorised load is stated to be 44 KW and therefore, the unauthorised load has been calculated to be 152 KW. However, in Ext.P6 the total load of the College is shown as 161 KW, the authorised load as 153KW and the unauthorised extension as 108KW. The Appellate Authority has taken a totally different stand holding that, the total load detected at the time of inspection was 218.931KW, and that WPC 2127/2010 6 the authorised load was 52.228KW. Therefore, it is held that the unauthorised extension is 106 KW. It is clear from the above that there is no certainty with respect to the quantity of connected load that has been detected. Alteration of the above vital aspect at the Appellate stage has left the petitioner with no opportunity to submit his objections to any of the above findings recorded. Objections are also raised regarding the manner in which the charges have been calculated. It is contended that it is not permissible for the authorities to calculate charges on daily basis and that too at the rates applicable to LTVIII tariff. The decisions reported in J.D.T.Islam Orphanage Committee v. Assistant Engineer, KSEB {2007(3) KLT 388} and Jomy Thomas Manjooran v. Kerala State Electricity Board {2013(1) KLT 595} are also relied upon. 6. A counter affidavit has been filed on behalf of respondents 2 and 4. The learned Senior Counsel Shri. P.Santhalingam appears for the respondents. According to the counsel, the service connection had been granted only to WPC 2127/2010 7 the 'O' shaped administrative block of the petitioner's establishment. The petitioner ought to have taken separate service connections in respect of the other buildings in his premises. Instead he has unauthorisedly taken extensions to the other buildings that include the clinical block, the hostels for ladies and gents and other buildings. Such extension can only be treated as unauthorised extensions and can be billed only in accordance with the LTVIII tariff. Regulation 37(5) of the Kerala State Electricity Board Terms and Conditions of Supply,2005 ('Terms and Conditions of Supply' for short) stipulates that the authorities have the power to review and correct demands wherever it is found that a mistake has occurred. Therefore, the Assessing Officer as well as the Appellate Authority have gone into the objections of the petitioner and corrected the mistakes. It is contended that Exts.P6, P10 and P11 are in order and do not require any interference by this Court. 7. Heard. The two discrepancies noticed at the time of WPC 2127/2010 8 inspection on 14.10.2008 are, the existence of unauthorised connected load and unauthorised extension. In the first place it is alleged that the petitioner has connected equipments far in excess of the connected load sanctioned to him. Therefore, such unauthorised connected load attracts penal action under Section 126 of the Act. Subsequently, it is alleged that the petitioner has taken connection to the different buildings in his campus from a single service connection that was granted only to the 'O' shaped administrative block. The unauthorised extension according to the respondents is liable to be charged only at the rates applicable to temporary extensions. 8. A perusal of Ext.P4 (a) shows that the total connected load detected at the time of inspection was 196KW. The authorised load is stated to be 44KW. Therefore, the unauthorised connected load has been fixed at 152KW. Accordingly, a provisional assessment was made computing charges at the rates applicable to LTVIIA tariff. As stated WPC 2127/2010 9 above the petitioner submitted Exts.P5 and P5(a) objections. Thereafter, by Ext.P6 the bill has been modified and reduced. But, the unauthorised extension load has been taken as 108KW on the basis that the total load detected at the college was 161KW from which the authorised connected load of 53KW was reduced. Ext.P7 bill has been issued on the above basis. On appeal, the Appellate Authority has found that the total load detected was 218.931KW out of which the authorised load has been taken to be only 52.228KW. Therefore, deducting the same from the total load detected the unauthorised extension has been taken to be 106KW. It is not clear, on what basis the difference in the unauthorised load has occurred. The mahazar shows no details of the unauthorised load that is stated to have been detected. The calculation statement Ext.P4(a) shows the connected load as per inspection on 14.10.2008 to be 106KW. The said figure cannot undergo a change, on a subsequent date. It is not in dispute that there was no other inspection of the petitioner's WPC 2127/2010 10 establishment after 14.10.2008. Therefore, on what basis the differing conclusions have been arrived at by the fourth respondent in Ext.P6 and by the Appellate Authority in Ext.P10 is not clear. 9. Regulation 2(1)(ee) of the Kerala Electricity Supply Code reads as follows:- “Premises” include any land building, structure or part of it, situated in an immovable property, details of which have been specified in the applications or agreements prescribed for grant of electric connection.” The above definition shows that the premises include any land, building, structure or part of it, details of which have been specified in the applications or agreements prescribed for grant of electric connection. Therefore, only a reference to the service agreement entered into with the petitioner would be able to throw light on the question as to whether the premises in the present case includes all the buildings in WPC 2127/2010 11 the campus or not. As already noticed above, in spite of the petitioner filing a petition before the Appellate Authority for summoning the said agreement, the same was not produced. 10. The third aspect that requires to be considered is whether, assuming that the petitioner has unauthorisedly extended the connection to the other buildings, what is the tariff that is applicable to charge such unauthorised extension. The issue has been considered by this Court in J.D.T.Islam Orphanage Committee v. Assistant Engineer, K.S.E.B (supra). The said decision was rendered under the regulations that were framed under the Electricity Act of 1910. However, in Jomy Thomas Manjooran v. Kerala State Electricity Board (supra) this Court has held that the reasoning adopted in the earlier decision is applicable to the present regulations also. Thus, it has been held that, it is on the basis of the tariff applicable to the connection that has been granted to the consumer that has to be taken into account for completing the assessment under Section 126 of the Act. It is for the said WPC 2127/2010 12 reason that twice the rate of tariff is adopted for the purpose of Section 126. 11. In the present case, the discrepancy regarding the actual connected load available at the premises of the petitioner, the question as to whether the petitioner has installed a generator having a capacity of 82 KVA, whether the said generator is being used to provide electrical energy to the additional equipments that are installed in the premises, the question as to whether only the administrative building has been specified in the service agreement while granting service connection to the petitioner and also what is the tariff to be applied in the event of it being concluded that the petitioner has made unauthorised extensions, are matters that require to be ascertained and set at rest, before the assessment against the petitioner is completed under Section 126 of the Act. The impugned proceedings Exts.P6, P10 and P11 being in conflict with each other and unclear on the above aspects are unsustainable and liable to be set aside. I do so. WPC 2127/2010 13 In the result this writ petition is allowed as follows:a) Exts.P6, P10 and P11 are set aside. b) The fourth respondent is directed to conduct an inspection of the premises of the petitioner with notice to him, to correctly ascertain whether the petitioner has any connected load in excess of what has been sanctioned to him and whether he has made any unauthorised extension as alleged. c) If it is found that the petitioner has connected equipments in excess of the load sanctioned or that there is unauthorised extension, the fourth respondent shall be at liberty to initiate fresh action under Section 126 of the Act. Sd/- K. SURENDRA MOHAN Judge jj /True copy/