Kerala High Court
Catholic Syrian Bank Ltd vs Kerala State Electricity Board on 5 May, 2011
Author: B.P.Ray
Bench: B.P.Ray
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE B.P.RAY
MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934
WP(C).No. 563 of 2012 (U)
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PETITIONER(S):
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CATHOLIC SYRIAN BANK LTD,
REGISTERED OFFICE AT THRISSUR,
HAVING ZONAL OFFICE AT KOTTAYAM,
REPRESENTED BY THE SR.MANAGER (LAW),
ST.THOMAS CENTRE, SASTRI ROAD, KOTTAYAM.
BY ADV. SRI.C.A.JOY.
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD,
REP. BY ITS SECRETARY, VYDUTHI BHAVAN,
THIRUVANANTHAPURAM-695 001.
2. THE DEPUTY CHIEF ENGINEER,
KSEB, ELECTRICAL CIRCLE,
KOTTAYAM, PIN-686 012.
3. ASST. ENGINEER,
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL SECTION, KOTTAYAM EAST, PIN-686 012.
BY ADV. SMT.P.K.RADHIKA, SC, KSEB.
BY ADV. SRI.K.M.SATHYANATHA MENON, SC, KSEB.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 26-03-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 563 of 2012 (U)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1- COPY OF THE THE SITE MAHASAR DATED 05.05.2011.
EXHIBIT P2- A COPY OF PROVISIONAL ASSESSMENT ORDER DT.11.05.11.
EXHIBIT P3- A TRUE COPY OF PROVISIONAL BILL DT.11.05.11.
EXHIBIT P4- A TRUE COPY OF THE OBJECTION DATED 19.05.11.
EXHIBIT P5- A TRUE COPY OF THE FINAL ORDER DATED 12.07.11.
EXHIBIT P6- A TRUE COPY OF THE LETTER DATED 06.12.11.
EXHIBIT P7- A TRUE COPY OF THE APPEAL DT.08.08.2011.
EXHIBIT P8- TRUE COPY OF THE ORDER DATED 23.12.11 ISSUED BY
THE 2ND RESPONDENT.
EXHIBIT P9- A TRUE COPY OF THE BILL WITH THE LETTER DATED 26.12.2011
ISSUED BY 3RD RESPONDENT.
EXHIBIT P10- TRUE COPY OF THE BILL DATED 05.07.2011.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
B.P.RAY, J.
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W.P.(C)No.563 OF 2012
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Dated this the 26th day of March, 2012
JUDGMENT
Heard the learned counsel for the petitioner and the learned standing counsel appearing for the Kerala State Electricity Board.
2. 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 W.P.(C)No.563 OF 2012 :: 2 ::
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:
"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 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 W.P.(C)No.563 OF 2012 :: 3 ::
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. Since, it is submitted that the petitioner has paid more than 50% of the demand, no further amount need be paid. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 30.04.2012. 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