Kerala High Court
The District Rifle Association Of ... vs The K.S.E.B on 22 March, 2012
Author: B.P.Ray
Bench: B.P.Ray
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE B.P.RAY
THURSDAY, THE 22ND DAY OF MARCH 2012/2ND CHAITHRA 1934
WP(C).No. 14789 of 2008 (I)
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PETITIONER:
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THE DISTRICT RIFLE ASSOCIATION OF IDUKKI,
REPRESENTED BY ITS SECRETARY, MUTTOM P.O., IDUKKI DISTRICT,
(CONSUMER NO.2815(MTM)4BII).
BY ADV. SRI.RAJU K.MATHEWS.
RESPONDENTS:
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1. THE K.S.E.B, REP. BY ITS CHAIRMAN,
THIRUVANANTHAPURAM.
2. THE DEPUTY CHIEF ENGINEER,
K.S.E.B, THODUPUZHA.
3. THE ASSISTANT ENGINEER,
ELECTRICAL SECTION, K.S.E.B, MOOLAMATTOM.
R1 TO R3 BY ADV. SRI.T.R.RAJAN,S.C,K.S.E.B.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 22-03-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).NO.14789/2008-I:
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P.1: COPY OF THE REGISTRATION CERTIFICATE DTD. 13/10/2004.
EXT.P.2: COPY OF THE RELEVANT EXTRACT OF THE BYELAW OF THE
PETITIONER.
EXT.P.2.A: COPY OF THE CERTIFICATE DTD. 14/10/2004 ISSUED BY THE SECRETARY
OF THE NATIONAL RIFLE ASSOCIATION.
EXT.P.2.B: COPY OF THE LETTER DTD. 19/12/2006 ISSUED BY THE SECRETARY OF
THE NATIONAL RIFLE ASSOCIATION.
EXT.P.2.C: COPY OF THE LICENSE NO.G6-36/07 (58) DTD. 18/05/2007 ISSUED BY THE
SECRETARY OF MUTTOM GRAMA PANCHAYAT.
EXT.P.3: COPY OF THE SITE MAHASSER DTD. 11/11/2006.
EXT.P.4: COPY OF THE INVOICE NO. 80876 DTD. 21/01/2006.
EXT.P.5: COPY OF THE APPEAL DTD. 24/01/2006.
EXT.P.6: COPY OF THE ORDER NO.APTS/DCE/CR-166/2005-06/TPZA/745 DTD.
27/1/2006.
EXT.P.7: COPY OF THE ORDER NO.GB1/APPEAL/07-08/281, DTD. 18/01/2008.
EXT.P.8: COPY OF THE INVOICE NO. 086385 DTD. 06/05/08.
EXT.P.9: COPY OF THE ORDER NO.BO.NO.(FB).NO.46/2003/(PLG.COM.4206/01) DTD.
15/01/2003.
RESPONDENT'S EXHIBIT:
EXT.R1.A: COPY OF THE NOTIFICATION DTD. 24/10/2002 ISSUED BY THE KERALA
STATE ELECTRICITY BOARD.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
B.P.RAY, J.
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W.P.(C)No.14789 OF 2008
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Dated this the 22nd day of March, 2012
JUDGMENT
Petitioner is an association registered under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Act. The main objects of which are to educate civilians in Rifle Shooting. APTs conducted a surprise inspection and detected an unauthorised connected load of 12KW in the petitioners premises. The third respondent therefore issued P4 invoice demanding Rs.13,203/- changing the category of the petitioner from LT VIB to LT VIIA. However, in appeal the second respondent has upheld the change of category. Later Ext.P8 demand has been made on the petitioner demanding payment of Rs.1,73,426/- . Aggrieved by this, petitioner filed this writ petition with the following prayers:
i) to call for the records relating to Exts.P4, P7 and P8 and to quash the same by the issuance of a writ of certiorari or other appropriate writ, direction or order.
ii) to issue such other writ, direction or order as this honourable court deems fit and proper;
iii) to award costs.
2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Kerala State Electricity Board. W.P.(C)No.14789 OF 2008 :: 2 ::
3. The issue involved in this case is squarely covered by the decision in C.A.No.8859 of 2011 dated 20th October, 2010 [Executive Engineer and another v. Sitaram Rice Mill] 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. 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. xxxxx
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 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:
W.P.(C)No.14789 OF 2008 :: 3 ::
"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."
4. 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 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. The amount, if any deposited, shall be given W.P.(C)No.14789 OF 2008 :: 4 ::
credit to. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 15.05.2012. 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.
B.P.RAY, JUDGE jes