## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON**
**WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936**
## **WP(C).No. 20104 of 2011 (K)**
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## **PETITIONER :**
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**THE CHAIRMAN, MANDIRAM HOSPITAL, MUNDAKAPADAM, MANGANAM, KOTTAYAM-18.**
**BY SRI.KURIAN GEORGE KANNANTHANAM (SENIOR ADVOCATE) ADVS. SRI.TONY GEORGE KANNANTHANAM SRI.MATHEW K. SIMON**
**RESPONDENTS :**
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**1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDUTHI BHAVAN, TRIVANDRUM - 686 001.**
## **2. THE ASST.ENGINEER,**
**ELECTRICAL SECTION, K.S.E.BOARD, PUTHUPPALLY, KOTTAYAM DISTRICT - 686 001.**
**BY ADV. SMT.P.K.RADHIKA, KSEB**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Msd.**
## **WP(C).No. 20104 of 2011 (K)**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS :**
**EXT.P1 : TRUE COPY OF THE MAHAZAR DATED 10.05.2011 PREPARED BY THE SUB ENGINEER OF THE PUTHUPALLY ELECTRICAL SECTION.**
**EXT.P2 : TRUE COPY OF THE PROVISIONAL ASSESSMENT ORDER DATED 08.06.2011 ISSUED BY THE 2ND RESPONDENT.**
- **EXT.P3 : TRUE COPY OF THE OBJECTION DATED 08.06.2011 BEFORE THE 2ND RESPONDENT (WITHOUT ANNEXURE).**
**EXT.P4 : TRUE COPY OF THE ADDITIONAL OBJECTION DATED 04.07.2011 BY THE 2ND RESPONDENT.**
**EXT.P5 : TRUE COPY OF THE FINAL ASSESSMENT ORDER DATED 12.07.2011 ISSUED BY THE 2ND RESPONDENT.**
## **RESPONDENT(S)' EXHIBITS :**
**EXHIBIT R1(A): A TRUE COPY OF THE KERALA GAZETTE NOTIFICATION. EXHIBIT R1(B): A TRUE COPY OF THE ORDER DATED 05.01.2010.**
**//TRUE COPY//**
**P.A.TO JUDGE**
## **Msd.**
## **P.R. RAMACHANDRA MENON, J.**
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## **W.P.(C) No.20104 of 2011**
**--------------------------------------Dated this the 24[th] day of September, 2014.**
## **JUDGMENT**
Ext.P5 final assessment order passed by the 2[nd] respondent is under challenge on various grounds. The petitioner is running a Hospital, proclaiming the same as a 'charitable institution' and the power supply is provided to the said Hospital under 'LT-VIA' tariff. It is stated that, no default was being committed by the petitioner at any point of time.
2. As part of the organisational requirement, an unaided Nursing School was started in the same compound, but in a different building. Admittedly, there is no electric connection to the said Nursing School and line has been drawn by the petitioner from the inpatient block of the Hospital, for catering to the needs of the Nursing School. The Nursing School also was in the category of 'LT-VIA', with regard to the power consumption, till 01.12.2007, when 'Unaided Educational Institutions' were taken outside the purview of 'LT-VIA' and they were categorised as 'LTVIIA', whereas the Educational Institutions in the 'Aided Sector'
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were permitted to remain in 'LT-VIA' tariff itself. The discrimination in this regard was subjected to challenge by various educational institutions in the unaided Sector and on losing the battle, the issue is now stated as pending before the Apex Court. It is also stated that, there is a stay in raising bills in the higher category tariff, during pendency of the proceedings.
3. While so, a surprise inspection was conducted by the authorities of the Board in the Nursing School and the premises of the Hospital on 10.05.2011, leading on Ext.P1 Mahazar, wherein it has been stated that an unauthorised load of 5.6KW (treated as 6KV) is being made use of by the petitioner as Consumer No.1719, by drawing the line from the inpatient block of the Hospital to the other building, wherein the Nursing Institution is located.
4. Pursuant to Ext.P1 Mahazar, the petitioner was served with Ext.P2 provisional assessment order, proposing to impose a penalty of Rs.17,51,846/- (Rupees Seventeen lakhs fifty one thousand eight hundred and forty six only), working out the figures in respect of the entire connected load, that too, effecting
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the calculation under tariff 'LT-VIIA', in spite of the fact that, 37KW was specifically attributable to the Hospital under category 'LT-VIA'. The disputed period is from 01.12.2007 to 30.04.2011. The petitioner filed Ext.P3 objection, pointing out that the penalty, if at all any, could only be in respect of the “unauthorised load” of '6 KW' made use of the Nursing School ” and not for the “unauthorised connected load . The sustainability of the proceedings seeking to fix the liability under the higher tariff has also brought to the notice of the concerned authority. However, without any regard to the same, the proceedings were finalised by the the 2[nd] respondent as per Ext.P5 order, which in turn is under challenge.
5. The respondent Board has filed a Counter Affidavit.
6. Heard both the sides in detail.
7. During the course of hearing, the learned counsel for the petitioner sought to place reliance on Regularisation/Clause 50(5) of the KSEB Terms and Conditions of Supply, 2005, raising a contention that the maximum liability could only be for a period of 12 months and never more. It is also asserted that, such
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calculation must be restricted to the extent of “unauthorised load” and that there is no basis for effecting any calculation with reference to the total connected load, including the Hospital as well; which admittedly falls under the category of 'LT-VIA'.
8. Smt. P.K. Radhika, the learned Standing Counsel appearing for the Board submits that, the idea and understanding of the petitioner is thoroughly wrong and misconceived. It is also stated that, the rider under Regulation No.50(5) restricting the scope of levy for a period of '12 months' is only in respect of the cases, where the date of connection of the unauthorised load is not detected, which is not the position in the instant case, in view of the admitted facts and figures. The Nursing School is in a separate building. Admittedly, there was no connection and the power supply was made available only by drawing line from the inpatient block of the Hospital.
## 9. The above provision Regulation 50(5) reads as follows:
_“If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place, and if however the period during which such unauthorised use of electricity has taken place cannot be ascertained such period shall be limited to a period of 12 months immediately_
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_preceding date of inspection.”_
After hearing both the sides, this Court finds that, the challenge raised by the petitioner with reference to the extent of default, seeking to have it restricted to 12 months, is not liable to be entertained, in view of the specific provision of law as extracted above.
10. The next question is as to the course adopted by the Board for fixing the quantum, treating the entire connected load under 'LT-VIIA' category. Admittedly, the connection provided to the Hospital, to an extent of 37KW, comes under the 'LT-VIA' category. The unauthorised load is only to an extent of 6KW and as such, the penalty has to be worked out with reference to the unauthorised load and not with reference to the unauthorised connected load.
11. Further question is with regard to the proper tariff, under which the energy consumption, in so far as the unauthorised load availed by the Nursing School, is to be worked out. It is brought to the notice of this Court that, a Division Bench of this Court has passed an order dated 28.05.2010 in
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## W.A. No.650 of 2010, making an observation in the following
## terms:
_“ The issue involved in the Writ Petitions stand covered in favour of the Appellants/Writ Petitioners as per judgment of another Division Bench in_ _**Bro.Joseph Antony v. Kerala State Electricity Board (2009(3) KLT 1022** ). XX XX XX XX_
_We are of the considered opinion that the issue has to be settled ultimately by the Honourable Supreme Court and till then these Writ Appeals can be kept pending. While considering about the arrangements to be continued till then, we have to take note that the operation of the judgment in Bro.Joseph Antony (cited supra) is under stay of the Honourable Supreme Court. While considering the balance of convenience we notice that the matter involves revenue due to the respondent Board. We are not inclined to stay collection of electricity charges at the enhanced tariff, which will put the respondent to prejudice if ultimately the Honourable Supreme Court uphold the change of tariff. On the other hand, the appellant's will get refund/adjustment if they ultimately succeed._
_3. Therefore, while admitting the Writ Appeals we make it clear that the appellants are liable to continue payment of charges under LT VII A tariff subject to final outcome of the issue pending before the Honourable Supreme Court. However, we make it clear that the respondent/Board should keep pending the recovery of arrears if any due from the appellants being the difference in tariff between LT VI A/LT VI B and LT VII A pertaining to the previous months, till the disposal of the Writ Appeals.”_
In the above circumstances, the petitioner has to satisfy the
liability in respect of the unauthorised load under 'LTVIIA'category for the time being, which however shall be subject to the outcome of the proceedings pending before the Apex
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Court.
12. In the above circumstances, Ext.P5 impugned in the writ petition stands set aside and the 2[nd] respondent is directed to rework the figures, in the light of the observations made herein before. The proceedings as above shall be finalised at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment. The amount already deposited by the petitioner pursuant to the interim order passed by this Court on 26.07.2011 shall be given credit to, against the liability of the petitioner to be reworked as mentioned above.
The writ petition is disposed of.
## **P.R. RAMACHANDRA MENON, JUDGE**
sp
The word 'unauthorised' occurring in the seventh line on page 3 and last word in the second last line in paragraph 10 is corrected and substituted as 'authorised', vide order dated 05/11/2014 in I.A. No.14888/2014 in W.P.(C) No.20104/2011.
Sd/Registrar (Judicial)
