Kerala High Court
M/S.Milma vs Kerala State Electricity Board on 14 February, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935
WP(C).No. 17593 of 2013 (Y)
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PETITIONER(S):
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M/S.MILMA
TRIVANDRUM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD
PUNNAPRA P.O, ALAPPUZHA, REPRESENTED BY ITS MANAGER
BY ADVS.SRI.J.JULIAN XAVIER
SRI.FIROZ K.ROBIN
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD
REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVANAM
PATTOM, THIRUVANANTHAPURAM, 695 004.
2. EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION
ALAPPUZHA 688 001.
3. ASSISTANT ENGINEER,
KERALA STATE ELECTRICITY BOARD
ELECTRICAL MAJOR SECTION(TOWN),
ALAPPUZHA 688 001.
R1-4 BY ADV. SMT.NAZEEBA.O.H., KERALA STATE ELECTRICITY
BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 17593 of 2013 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1: TRUE COPY OF THE BYE-MONTHLY BILL DATED 14/2/2000.
EXT.P2: TRUE COPY OF THE MAHAZER DATED 16/8/2000.
EXT.P3: TRUE COPY OF THE LETTER DATED 12/10/2000 ASKING THE
PETITIONER TO PAY PENALTY THAT TOO UNDER LT VII A TARIFF.
EXT.P4: TRUE COPY OF THE DEMAND DATED 12/10/2000.
EXT.P5: TRUE COPY OF THE PETITION DATED 7/2/2001 FILED BY THE
PETITIONER BEFORE THE CHAIRMAN KSE BOARD.
EXT.P6: TRUE COPY OF THE DEMAND DATED 22/11/2000.
EXT.P7: TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT
REQUESTING THE PETITIONER TO REMIT SERVICE CONNECTION
CHARGES
EXT.P7(A): TRUE COPY OF THE RECEIPT DATED 15/10/2001 ISSUED BY THE
3RD RESPONDENT.
EXT.P8: TRUE COPY OF THE LETTER DATED 23/6/2002 FILED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT.
EXT.P9: TRUE COPY OF THE BILL DATED 10/8/2005 ISSUED BY THE 3RD
RESPONDENT.
EXT.P10: TRUE COPY OF THE CALCULATION STATEMENT DATED 2/12/2005
ISSUED BY THE 3RD RESPONDENT.
EXT.P11: TRUE COPY OF THE APPEAL DATED 15/12/2005.
EXT.P12: TRUE COPY OF THE ORDER DATED 15/3/2006.
EXT.P13: TRUE COPY OF THE DEMAND DATED 28/4/2006.
EXT.P14: TRUE COPY OF THE DEMAND DATED 28/6/2007 ISSUED BY THE 3RD
RESPONDENT.
EXT.P15: TRUE COPY OF THE JUDGMENT DATED 10/10/2012 IN WPC
NO.22689/2007.
EXT.P16: TRUE COPY OF THE ORDER DATED 22/12/2012 ISSUED BY THE 3RD
RESPONDENT.
EXT.P17: TRUE COPY OF THE JUDGMENT DATED 14/2/2013 IN WPC
NO.4386/2013.
WP(C).No. 17593 of 2013 (Y)
EXT.P18: TRUE COPY OF THE APPEAL DATED 7/3/2013 WITHOUT EXTS.
EXT.P19: TRUE COPY OF THE ORDER DATED 5/6/2013 ISSUED BY THE 2ND
RESPONDENT.
EXT.P20: TRUE COPY OF THE ORDER DATED 14/1/2002 ISSUED BY THE
CHIEF ELECTRICAL INSPECTOR, THIRUVANANTHAPURAM.
RESPONDENT(S)' EXHIBITS : NIL
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/TRUE COPY/
P. A. TO JUDGE
Pn
C.K. ABDUL REHIM, J.
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W.P.(C). No. 17593 of 2013
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Dated this the 26th day of November, 2013
JUDGMENT
It is on the third round of litigation that the petitioner is approaching this court challenging the imposition of penalty under Regulation 42(d) of the Conditions of Supply of Electrical Energy. The dispute pertains to an electrical connection provided under Consumer No.615 in a rented premises occupied by the petitioner society. On the basis of an inspection conducted at the premises on 16.08.2000, penalty was imposed on the allegation that the petitioner had exceeded the connected load by 2KW and also on the allegation that the electricity charges ought to have been levied under LTVIIA tariff. The penalty at 3 times on fixed charges and current charges were imposed for a period of 6 months prior to the date of inspection along with a short assessment with respect to the bi-monthly bill issued for the month of 8/2000. An appeal filed against the assessment before the 2nd respondent was disposed of through Ext.P12. The appellate authority found that there was usage of unauthorised additional load in the premises and hence misuse W.P.(C). No. 17593 of 2013 -2- of energy was detected. The appellate order was challenged in a writ petition filed before this court, which was disposed of through Ext.P15 judgment. The petitioner raised contention that the activity carried on in the premises cannot be considered as commercial, coming within LTVIIA tariff. According to the petitioner the premises was used only as its own Depot with a 'mid-storage facility' and the cold storage used therein was only for the purpose of keeping the goods without damage. This court in Ext.P15 judgment observed that the above said question needs consideration by the authority. Therefore Ext.P12 order was set aside and the matter was remitted to the Assessing Officer to finanlise the penalty afresh, after giving opportunity to the petitioner and the authorities of the Board.
2. Pursuant to Ext.P15 judgment the 3rd respondent had issued fresh orders as per Ext.P16. Findings are to the effect that, at the time of inspection sales conducted at the premises was detected. Further the activity of storing and selling of goods manufactured by the petitioner in the premises, which is situated far away from the production unit and in a premise owned by another person, will not come within the purview of any industrial activity, but the activity can W.P.(C). No. 17593 of 2013 -3- only be considered as commercial. Hence it is found that imposition of penalty under LTVIIA is sustainable.
3. Ext.P16 order was again subjected to challenge before this court in an another writ petition. In Ext.P17 judgment this court directed the petitioner to seek statutory remedy before the appropriate authority. On that basis an appeal was filed against Ext.P16 before the 2nd respondent. Ext.P19 is the order passed by the appellate authority, again rejecting the appeal. Findings to the effect that the storing unit was away from the manufacturing unit is reiterated. Hence the contention that LTIV (industrial tariff) is the relevant tariff, was rejected. Further, the penalty imposed on current charges was upheld finding that the Board Order revising the earlier position was introduced only on 18.09.2012, whereas the inspection was in the year 2000. It is aggrieved by Ext.P19 order, this writ petition is filed.
4. Contention of the petitioner is mainly on the ground that the imposition of penalty under LTVIIA tariff cannot be sustained. According to the petitioner, the premises was used for storage of products manufactured by the petitioner for supply to dealers. Petitioner being the manufacturer of the products, the tariff which ought to have been applied is LTIV W.P.(C). No. 17593 of 2013 -4- (industrial). But, as found by the appellate authority, the place of storage which is situated far away from the manufacturing unit cannot be treated as an industrial activity. Learned counsel for the petitioner had pointed out that the premises was used as a cold storage. Referring to the tariff order which was prevailing during the time of inspection it is contended that the activity of cold storage is also included under LTIV tariff. But on facts it remains that the electric connection in the premises was provided in the name of the owner of the building. The tariff at which the electric connection was provided is under LTVIB, because the connection was originally provided to run the "Saksharatha Kendra" under the "Saksharatha Mission". Question as to which is the appropriate tariff applicable to the petitioner will depend upon its activity, which is not germane for consideration in this writ petition. Penalty can be imposed either under the tariff at which the electric connection was provided at the premise or at the tariff applicable to the purpose for which the energy was used, if such imposition is permissible. The petitioner, having been used the electricity under LTVIB tariff for quite a long time, cannot be permitted to turn around and raise a contention in challenge of the imposition of penalty, that the W.P.(C). No. 17593 of 2013 -5- correct tariff applicable would be LTIV. Therefore the question as to whether penalty should have been imposed under LTIV does not arise for consideration.
5. Admittedly there was unauthorised additional load detected to the extent to 2KW. There is no dispute that the unauthorised additional load detected is liable to be penalised. Contention disputing the alleged misuse of tariff cannot be accepted because of the reason that the activity carried on in the premises at the time of inspection was not one related to any educational programme. Therefore it is evident that energy supplied at the premise was used for purposes which are not contemplated under the contract of supply, for which a higher tariff is applicable. Such a usage was without knowledge or consent of the Board. Hence the misuse under Regulation 42(d) is clearly evident. Hence the imposition of penalty is to be sustained on that count.
6. Question arises as to what should be the appropriate tariff under which the penalty ought to have been assessed. Interpreting the expression, "respective tariff" under Regulation 42(d), this court in the decision in J.D.T. Islam V. Assistant Engineer, K.S.E.B. (2007 (3) KLT 388) held that, it denotes only the tariff at which the quantity of supply at the W.P.(C). No. 17593 of 2013 -6- main premises is billed. Therefore it is held that the "respective tariff" contemplated under Regulation 42(d) for imposing penalty is only the tariff applicable for the supply at the main premise is provided. In the case at hand it is evident that the tariff at which supply was made in the premise was LTVIB. Therefore penalty cannot be imposed under LTVIIA on the basis of the alleged misuse.
7. The question arises as to whether penalty can be imposed both on fixed charges and current charges for the unauthorised usage at the additional load. This court in the decision in Writ Appeal No. 1231/2003 held that the penalty has to be limited to fixed charges portion alone since the quantity of energy consumed in the premises is otherwise measured and charged and the consumer had paid for the same. It is evident that the Board has issued an order on 20.10.1998 (B.O.No.3225/98) to the effect that penalty should be charged both under fixed charges and current charges for unauthorised additional load. But the said order was subsequently amended on 18.09.2012 through another order issued by the Board (B.B.(FB) No.1292/2003). The stand taken by the respondents is that since the detection of unauthorised additional load was prior to 18.09.2012 penalty on current W.P.(C). No. 17593 of 2013 -7- charges is also leviable. However the question remains now settled through a decision of this court in Writ Appeal No.1231/2013 and based on various subsequent decisions, which will indicate that penalty on current charges cannot be levied merely on the allegation of unauthorised additional load. Therefore the penalty should have been limited to fixed charges on the basis of detection of unauthorised additional load to the extent of 2KW. But in the case at hand, the penalty is imposed not only on the basis of detection of unauthorised additional load but also on the basis that there was misuse of energy to the extent that energy supplied for a specific purpose under a particular tariff is used for a different purpose not contemplated in the contract for which a higher tariff is applicable. Hence this court is of the opinion that, penalty on both fixed charges and current charges is leviable, but only under tariff VIB.
8. In view of the findings rendered as above, the writ petition is partly allowed. The penalty imposed against the petitioner which is ultimately confirmed through Ext.P19 is hereby set aside. The 3rd respondent is directed to revise the penalty on the following terms; The penalty shall be revised imposing fixed charges on the unauthorised additional load of W.P.(C). No. 17593 of 2013 -8- 2KW at 3 times for a previous period of 6 months from the date of inspection, at the rate applicable to LTVIB tariff which was prevalent on the date of inspection. Penalty on current charges for the same period can also be levied at the same rate after giving credit to the amounts of current charges already paid.
9. The 3rd respondent shall issue revised bill on the above terms within 15 days of receipt of a copy of this judgment. Amounts already paid by the petitioner shall be appropriated against the revised demand.
10. Needless to observe that, excess payment if any made has to be adjusted/refunded. On the other hand, if any further amount is due from the petitioner, they shall be given time of 15 days from the date of service of the revised demand.
Sd/-
C.K. ABDUL REHIM, JUDGE Pn