High Court of KeralaSingle Judge2022-10-21Writ petition disposed of; Exts.P3–P8 set aside...

The Principal, St. Berchman’s College, St. Berchman’s College, Changanacherry, Kottayam v. Kerala State Electricity Board and Others

Case / Petition Number:WP(C) No. 11327 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2022-10-21
Court Decision / Holding: Exts.P3 to P8 are set aside. The 2nd respondent is directed to pass appropriate orders in accordance with the law and in tune with the observations in the judgment dated 25.01.2012 in W.P.(C) No.25106 of 2008, expeditiously within three months from the date of receipt of a copy of this judgment, with the petitioner depositing 50% of the demand within one month and adjustment of any amount deposited.
Final Disposition: Writ petition disposed of; Exts.P3–P8 set aside; 2nd respondent directed to pass orders in line with the 2012 judgment within three months; 50% deposit condition to be followed as applicable; overall disposition to align with statutory provisions and protect public interest.

Parties to the Case

Appellants / Petitioners

The Principal, St. Berchman’s College, St. Berchman’s College, Changanacherry, Kottayam

Respondents

Kerala State Electricity Board, represented by its Chairman, Thiruvananthapuram
The Deputy Chief Engineer Kerala State Electricity Board, Electrical Circle, Palakkad?
The Executive Engineer Kerala State Electricity Board, Electrical Section, Changanacherry, Kottayam
The Asst. Engineer Kerala State Electricity Board, Electrical Section, Changanacherry, Kottayam
Kerala State Electricity Regulatory Commission, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri John Joseph Vettikad

Counsels for Respondents

• N. Raphy Raj, SC, K.S.E.B; N. Satheesh, Aneesh James, P.P. Thajudeen, S. Sujin, Joswin Thambi K., SCs

Case Synopsis & Summary

The petitioner, The Principal of St. Berchman’s College, Changanacherry, challenges the Kerala State Electricity Board’s demand for proportionate energy charges on an alleged unauthorized load for the months 4/2008 to 11/2008. The petition asserts that Exts. P3 to P6 and P8 (the disputed energy charges) are unlawful and seeks quashing of these bills, arguing that penalties for alleged unauthorized use are not to be levied without proper legal footing and notice. The matter ties to established law on how charges relate to sanctioned/connected load under the Electricity Act, 2003, and to the Board’s contractual terms. Both sides concede that the core issue is captured by prior authoritative decisions, notably the Supreme Court and Kerala High Court precedents: the minium energy charges must reference contract demand; overdrawal beyond sanctioned load constitutes unauthorized use with potential remedies including higher tariff or disconnection. The High Court cites Executive Engineer v. Sitaram Rice Mill (2010) and Bhilari Rerollers v. M.P. Electricity Board (2003) to frame the legality of the Board’s charge scheme. The Court ultimately disposes of the petition, setting aside the challenged exhibits and directing the Board to pass orders in line with the 2012 decision in W.P.(C) No.25106 of 2008 within three months, with payment deposit adjustments as appropriate.

Provisions of Law Cited

Section 126 of the Electricity Act, 2003

Legal Doctrines & Maxims

Unauthorized use of electricity under Section 126 of the Electricity Act, 2003
Contractual terms and conditions binding on supply; breach is prejudicial to the public interest

Submissions & Arguments

Contentions of Appellants / Petitioners

The petition contends that the demand for proportionate energy charges for unauthorized load (4/2008 to 11/2008) is unsustainable in law and contrary to the terms of the supply contract and the Electricity Act, 2003. It relies on the decision in W.P.(C) No.25106 of 2008 (25.01.2012) and the Supreme Court’s observations in Bhilari Rerollers and others v. M.P. Electricity Board (2003 KHC 1521; 2003 (7) SCC 185) and Executive Engineer v. Sitaram Rice Mill (2010 (4) KHC 1) that penalties or higher tariff should be predicated on the sanctioned/connected load and proper procedure. The petitioner seeks quashing Exts. P3–P6 and P8, withdrawal of penal bills, and a mandamus to adjudicate the matter per law, with opportunities for hearing and deposit adjustments; the remedy is framed within the 2012 W.P.(C) decision guiding future assessment by the second respondent.

Contentions of Respondents

The Board contends that minimum energy charges are to be levied with reference to the contract demand and that consumption beyond sanctioned/connected load constitutes unauthorized use, justifying higher tariff and, if necessary, disconnection. It relies on the contract terms and the statutory framework under the Electricity Act, 2003, and precedent such as Bhilari Rerollers and the Apex Court’s interpretations, to justify the Board’s right to levy charges for excess load. It argues that the observed penalties serve the public interest and the reliability of the supply system, consistent with earlier judicial dicta approving recovery of higher charges in similar circumstances.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Executive Engineer and another v. Sitaram Rice Mill	2010 (4) KHC 1	Positive	Cited to support that consumption beyond sanctioned load can be treated as unauthorized use and justify higher charges within contractual and statutory framework.
Bhilari Rerollers and others v. M.P. Electricity Board and others	2003 KHC 1521 : 2003 (7) SCC 185 : JT 2003 (7) SC 215	Positive	Cited to justify Board’s right to raise demand when excess draw is beyond contracted load, as recognized by Apex Court.
W.P.(C) No.25106 of 2008	Judgment dated 25.01.2012	Positive	Authoritative pronouncement relied upon to dispose the present petition and guide the assessment process in accordance with law.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** ## **WP(C) NO. 11327 OF 2009** ## **PETITIONER:** THE PRINCIPAL, ST.BERCHMAN'S COLLEGE, ST.BERCHMAN'S COLLEGE, CHANGANACHERRY, KOTTAYAM. BY ADV SRI.JOHN JOSEPH VETTIKAD ## **RESPONDENTS:** 1 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VITHUTHY BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2 THE DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, PAKKIL, P.O.PALLOM, KOTTAYAM. 3 THE EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, CHANGANACHERRY, KOTTAYAM. 4 THE ASST. ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, CHANGANACHERRY, KOTTAYAM. 5 KERALA STATE ELECTRICITY REGULATORY COMMISSION, 30, PARAMESWARA BHAVAN, BETHEAVEN GARDENS, KAWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN. BY ADVS. SRI.N.RAPHY RAJ, SC, K.S.E.B SRI.N.SATHEESH SRI.ANEESH JAMES,SC,KSEB REGULATORY COM SRI.P.P.THAJUDEEN, SC, K.S.E.B SRI.S.SUJIN, SC, ELECTRICITY REGULATORY COMMISSION SRI.JOSWIN THAMBI K., SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11327 OF 2009 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C).No. 11327 of 2009** **---------------------------------------------Dated this the 21[st] day of October, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) Issue a writ of certiorari or other appropriate writ in the nature thereof calling for the records relating to Exhibit P3 to P6 and P8 and quash the same._ _(ii) Declare that the respondents are not entitled to collect proportionate energy charges for the unauthorized additional load from the petitioner for the month from 4/2008 to 11/2008._ _(iii) Issue a writ of mandamus or other appropriate writ, order or direction in the nature thereof directing the respondents withdraw the illegal penal bills for the unauthorized additional load for the month from 4/2008 to 11/2008._ _(iv) Pass such other writ order or direction as this court may deem fit and proper in the interest of justice.”[SIC]_ WP(C) NO. 11327 OF 2009 3 2. The grievance of the petitioner is about the demand of proportionate energy charges on the alleged unauthorized load. When this writ petition came up for consideration, both sides submitted that the point raised in this writ petition is covered by the judgment dated 25.01.2012 in W.P.(C)No.25106 of 2008. It will be better to extract the above judgment: _“1. Heard the learned counsel for the petitioner and the learned standing counsel Sri.P.Santhalingam for the Kerala State Electricity Board._ _2. The issue involved in this case is squarely covered by the decision in Executive Engineer and another v. Sitaram Rice Mill reported in (2010 (4) KHC 1) wherein the Apex Court in paragraphs 44 and 46 held as follows:_ _“44. Minimum energy charges are to be levied with reference to 'contract demand' at the rate prescribed under the terms and conditions. These clauses of the agreement clearly show that the charges for consumption of electricity are directly relatable to the sanctioned/connected load and also the load consumed at a given point of time if it is in excess of the sanctioned/connected load._ WP(C) NO. 11327 OF 2009 4 _The respondent could consume electricity upto 110 KVA but if the connected load exceeded that higher limit, the category of the respondent itself could stand changed from 'medium industry' which will be governed by a higher tariff._ _45. XXX_ _46. On the cumulative reading of the terms and conditions of supply, the contract executed between the parties and the provisions of the 2003 Act, we have no hesitation in holding that consumption of electricity in excess of the sanctioned/connected load shall be an 'unauthorised use' of electricity in terms of Section 126 of the 2003 Act. This, we also say for the reason that overdrawal of electricity amounts to breach of the terms and conditions of the contract and the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations. In somewhat similar circumstances, where the consumer had been found to be drawing electricity in excess of contracted load and the general conditions of supply of electricity energy by the Board and Clause 31(f) of the same empowered the Board to disconnect supply_ WP(C) NO. 11327 OF 2009 5 _and even levy higher charges as per the tariff applicable, this Court held that such higher tariff charges could be recovered. While noticing the prejudice caused, the Court in the case Bhilari Rerollers and others v. M.P.Electricity Board and others (2003 KHC 1521 : 2003 (7) SCC 185 : JT 2003 (7) SC 215), held as under:_ _“21. The respondent Board, therefore, is entitled to raise the demand under challenge since such right has been specifically provided for and is part of the conditions for supply and particularly when such drawal of extra load in excess of the contracted load is bound to throw out of gear the entire supply system undermining its efficiency, efficacy not only causing stress on the installations of the Board but considerably affect other consumers who will experience voltage fluctuations. Consequently, we see no merit in the challenge made on behalf of the appellants. The appeals, therefore, fail and shall stand dismissed but with no costs.”_ _3. In that view of the authoritative pronouncement of the Apex Court, I set aside the order of the assessing authority as well as the appellate authority and remit the matter to the assessing officer to dispose of the same in accordance_ WP(C) NO. 11327 OF 2009 6 _with the judgment referred above. Learned counsel for the petitioner submits that no penalty can be levied under Section 126 of the Electricity Act, 2003. The assessing authority, while considering the matter, shall take into consideration all the observations of the State Electricity Regulatory Commission in D.P.75/2009 dated 19.1.2010 and the judgment of the Apex Court and decide the question afresh after giving the petitioner an opportunity of being heard. The entire exercise shall be completed within a period of two months from the date of receipt of a copy of this judgment subject to the condition that, as agreed, the petitioner deposits 50% of the demand within one month and the amount, if any deposited, shall be adjusted. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 14.2.2012. It is open to the petitioner to raise all relevant points before the assessing authority, if so advised._ _Writ petition is disposed of as above.”_ 3. In the light of the same, I think this writ petition also can be disposed of in tune with the judgment dated 25.01.2012 in W.P.(C)No.25106 of 2008. WP(C) NO. 11327 OF 2009 7 Therefore, this writ petition is allowed in the following manner: i) Exts.P3 to P8 are set aside. ii) The 2[nd] respondent is directed to pass appropriate orders in accordance to law and in tune with the observations in the judgment dated 25.01.2012 in W.P.(C)No.25106 of 2008, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 11327 OF 2009 8 ## **APPENDIX OF WP(C) 11327/2009** |PETITIONER|EXHIBITS| |---|---| |EXHIBIT P1|THE TRUE COPY OF THE LETTER NO.| ||BB/CHRY/PENALTY-BILL/07-08/33 DATED| ||21-12-2007.| |EXHIBIT P2|THE TRUE COPY OF THE BILL DATED 4-2-| ||2008 AND THE RECEIPT DATED 18-2-| ||2008.| |EXHIBIT P3|THE TRUE COPY OF THE PROPORTIONATE| ||CURRENT CHARGES FOR THE MONTH OF| ||7/08 TO 10/08 DATED 12-11-2008.| |EXHIBIT P4|THE TRUE COPY OF THE PROPORTIONATE| ||CURRENT CHARGES FOR THE MONTH OF| ||4/2008 DATED 16-5-2008.| |EXHIBIT P5|THE TRUE COPY OF THE PROPORTIONATE| ||CURRENT CHARGES FOR THE MONTH OF| ||5/2008 DATED 18-6-2008.| |EXHIBIT P6|THE TRUE COPY OF THE PROPORTIONATE| ||CURRENT CHARGES FOR THE MONTH OF| ||6/2008 DATED 16-7-2008.| |EXHIBIT P7|THE TRUE COPY OF THE OBJECTION DATED| ||25-11-2008 SUBMITTED BY THE| ||PETITIONER BEFORE THE 4TH| ||RESPONDENT.| |EXHIBIT P8|THE TRUE COPY OF THE REPLY DATED 9-| ||1-2009 GIVEN 4TH RESPONDENT.| |EXHIBIT P9|THE TRUE COPY OF THE ORDER NO. B.O.| ||(FM) NO. 368/2008 (DPC)/C1-| ||G.1/182/2007 DATED 7-2-2008.| RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE