Saju Lekshman v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **WP(C).No.31992 OF 2019(Y)** ## **PETITIONER:** **SAIJU LEKSHMAN, AGED 54 YEARS, PROPRIETOR,AKKAVILA K. LEKSHMANAN AND CO., MUKHATHALA P.O., KOLLLAM** **BY ADVS. SRI.JOHNSON GOMEZ SRI.C.UNNIKRISHNAN (KOLLAM) SRI.S.BIJU (KIZHAKKANELA)** ## **RESPONDENTS:** **1 KERALA STATE OF ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, PIN - 695 001.** - **2 THE ASSISTANT ENGINEEER, KERALA STATE ELECTRICITY BOARD LIMITED, ELECTRICAL SUBDIVISION, KOTTIYAM, KOLLAM, PIN - 691 001.** - **3 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, CC 51/52, NEAR 110 KV SUBSTATION VYTILA, ERNAKULAM, PIN - 682 019..** - **4 ANTI POWER THEFT SQUAD, KERALA STATE ELECTRICITY, POWER HOUSE COMPOUND, BOARD, KOLLAM. SRI.N.SATHEESH SRI.SUDHEER GANESH KUMAR, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2020, ALONG WITH WP(C).32140/2019(N), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.31992 & 32140 OF 2019** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **WP(C).No.32140 OF 2019(N)** ## **PETITIONER:** **SAIJU LEKSHMAN, AGED 54 YEARS, S/O. J LEKSHMANAN, PROPRIETOR, AKKAVILA.K. LEKSHMANAN AND CO. MUKHATHALA P.O. KOLLAM 691 577.** **BY ADVS. SRI.JOHNSON GOMEZ SRI.SANJAY JOHNSON** ## **RESPONDENTS:** **1 KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS SECRETARY , PATTOM THIRUVANANTHAPURAM 695 001.** - **2 THE ASSISTANT ENGINEER KSEB LIMITED, ELECTRICAL SUBDIVISION, KOTTIYAM, KOLLAM 691 001.** - **3 APPELATE AUTHORITY, O/O. SRI. K.K. UNNI, TC 51/52 NEAR 110 KV SUBSTATION, VYTILA, ERNAKULAM 682 019.** - **4 ANTI POWER THEFT SQUAD, POWER HOUSE COMPOUND, KERALA STATE ELECTRICITY, BOARD, KOLLAM 691 001. SRI.SUDHEER GANESH KUMAR, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2020, ALONG WITH WP(C).31992/2019(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.31992 & 32140 OF 2019** **3** ## **JUDGMENT** The petitioner herein in both these cases is the proprietor of M/s. Akkavila K.Lekshmanan & Co. He is a High Tension consumer with the Kerala State Electricity Board and he has been using the electricity connection for running a M-sand unit. On 30.9.2019, an inspection was conducted by the Anti-Theft Power Squad in his premises and unauthorised additional load was detected. Ext.P1 provisional assessment orders were passed under Section 126 of the Indian Electricity Act, 2003 and he was called upon to pay a sum of Rs. 34,97,238/- in respect of one violation and Rs. 25,00,581/- in respect of the other. An objection was preferred by the petitioner to the provisional assessment order and after hearing him and after considering his objections, Ext.P2 final orders of assessment was passed confirming the provisional assessment order. Instead of preferring an appeal under Section 127 of the Electricity Act, 2003, the petitioner has approached this Court seeking to quash Ext.P2 final assessment orders and/or for a direction to the 3[rd] respondent to accept the appeal preferred by him without insisting for the deposit of 50 % of the fixed charges payable as **WP(C).Nos.31992 & 32140 OF 2019** **4** mandated under Section 127 of the Electricity Act. 2. Heard Sri.Johnson Gomez, the learned counsel appearing for the petitioner and the learned standing counsel appearing for the respondent Board. 3. The learned Standing Counsel has raised the question of maintainability of the Writ Petition in view of the alternate remedy available to the petitioner under the Electricity Act, 2003. Any person aggrieved by a final order under Section 126 is entitled to prefer an appeal before the appellate authority under Section 127 of the Act. It is by now settled that this Court will not entertain a Writ Petition if an effective alternative remedy is available to an aggrieved person or the statute under which the action complained of, itself contains a mechanism for redressal of grievance. Of course, the authority of this Court under Article 226 of the Constitution of India to exercise judicial review remain unaffected in cases wherein the order was passed without jurisdiction or when the authority has usurped jurisdiction without any legal foundation. However, such intrusions are not made out in the instant case. I am of the view that when the law creates a statutory forum for redressal of grievance, it would not be proper for this Court to entertain a writ petition ignoring the statutory dispensation. 4. At this stage, the learned counsel submitted that the petitioner **WP(C).Nos.31992 & 32140 OF 2019** **5** had raised a contention before the assessing authority that 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 relying on a decision of this Court in **Sulabha Marketing (P) Ltd. v. Kerala State Electricity Board, Thiruvananthapuram and others[1]** . However, I find from Ext.P2 order that the assessing authority has concluded that if additional load as detected is added to the system, the voltage regulation of the feeder will go beyond the permissible limit for the HT feeder. The assessing officer has concluded that this would require the upgradation of the existing line to connect the additional load to the HT feeder without affecting the system. In that view of the matter, the principles laid down in Sulabha (supra) may not come to the rescue of the petitioner. 5. At this stage, the learned counsel appearing for the petitioner requested that necessary directions be issued to the appellate authority to take the matter back on file so as to enable the petitioner to contest the matter on its merits. He points out that the final assessment order is dated 2.11.2019. As per the provisions of the Electricity Act, 2003, appeal had to be preferred within a period of 30 days. The petitioner has preferred this 1 [2017 (3) KHC 563] **WP(C).Nos.31992 & 32140 OF 2019** **6** Writ Petition on 25.11.2019 and has been pending before this Court till 25.2.2020. The learned counsel relies on a decision of the Bombay High Court in **Rakhee Gupta v. State of Maharashtra and Ors[2]** decided on 18.10.2016 and it is argued that section 29(2) of the Limitation Act would be applicable to an appeal preferred under Section 127 of the Electricity Act. Reliance is also placed on a decision of the Calcutta High Court in **Sudipta Koley v. Smt. M. Bhomwmick and Anr[3]** decided on 6.3.2019 to substantiate his contention. 6. Having considered the facts and circumstances and submissions made across the bar, while dismissing the Writ Petition, I direct the petitioner to approach the Appellate authority within a period of one week from today and prefer an appeal under Section 127 of the Act after depositing the amount in terms of the statute. The petitioner may also file an application for condonation of delay stating the relevant facts. The Appellate Authority shall consider the application for condonation of delay and pass appropriate orders taking note of the peculiar facts and circumstances and also the pendency of the petition before this Court. If the appeal is admitted, the Appellate authority shall strive to dispose of the same within a period of six > 2 [W.P.(C) No.1674 of 2016] > 3 [W.P.(C) No.84 of 2019 and connected cases] **WP(C).Nos.31992 & 32140 OF 2019** **7** weeks. Till orders are passed in the appeal and the same is communicated to the petitioner herein, the recovery proceedings initiated against the petitioner herein shall be kept in abeyance. These writ petitions will stand dismissed with the above directions . **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** sru **WP(C).Nos.31992 & 32140 OF 2019** **8** ## **APPENDIX OF WP(C) 31992/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER NO. AEE/ESDKTM/ASSESSING OFFICER/12/2019-20 DATED 5/10/2019. EXHIBIT P2 A TRUE COPY OF THE FINAL ASSESSMENT ORDERNO. AO/ESD-KTYM/2019-20/FO-12 DATED 2/11/2019. EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 6TH JUNE 2017 IN WPC NO. 18653 OF 2017. EXHIBIT P4 A TRUE COPY OF THE APPEAL TO BE PREFERRED AGAINST THE EXHIBIT P3 FINAL ASSESSMENT.** **RESPONDENTS' EXHIBITS:NIL** **WP(C).Nos.31992 & 32140 OF 2019** **9** ## **APPENDIX OF WP(C) 32140/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 ORDER NO. AEE/ESD-KTM/ASSESSING OFFICER/11/2019-20 DATED 5/10/219. EXHIBIT P2 TRUE COPY OF THE FINAL ASSESSMENT ORDER NO. AO/ESD-KTYM/2019-20/FO-11 DATED 2/11/2019. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 6TH JUNE 2017 IN WPC NO. 18653 OF 2017. EXHIBIT P4 TRUE COPY OF THE APPEAL TO BE PREFERRED AGAINST THE EXHIBIT P3 FINAL ASSESSMENT.** **RESPONDENTS EXHIBITS:NIL**