Kerala High Court
The Mathrubhumi Printing And ... vs The Kerala State Electricity Board on 29 January, 2001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE B.P.RAY
THURSDAY, THE 23RD DAY OF FEBRUARY 2012/4TH PHALGUNA 1933
WP(C).No. 13730 of 2009 (I)
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PETITIONER:
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THE MATHRUBHUMI PRINTING AND PUBLISHING
CO. LIMITED, KALOOR,KOCHI-17
REPRESENTED BY ITS
SENIOR GENERAL MANAGER (COMPANY AFFAIRS & LAW)/
SECRETARY,SRI.M.V.GOPALAKRISHNAN
BY ADVS.SRI.K.SRIKUMAR
SRI.K.MANOJ CHANDRAN
SRI.P.R.AJITHKUMAR
RESPONDENTS:
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1. THE KERALA STATE ELECTRICITY BOARD,
VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.
2. THE DEPUTY CHIEF ENGINEER, KSEB
ELECTRICAL CIRCLE, ERNAKULAM
3. THE EXECUTIVE ENGINEER,ELECTRICAL
DIVISION, KSEB, ERNAKULAM.
4. THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION, KSEB, PALARIVATTOM.
5. THE ASSISTANT ENGINEER,ELECTRICAL
SECTION, KSEB,KALOOR.
6. CHAIR PERSON, CONSUMER GRIEVANCE
REDRESSAL FORUM ERNAKULAM.
R1-R5 BY SRI.T.R.RAJAN,SC,K.S.E.B.
SRI.P.P.THAJUDEEN, SC, K.S.E.B
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 13730 of 2009 (I)
: 2:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 : TRUE COPY OF THE AGREEMENT DATED 29.01.2001.
EXT.P2 : TRUE COPY OF THE MAHAZAR.
EXT.P3 : TRUE COPY OF THE PROVISIONAL BILL DATED
08.04.2009.
EXT.P4 : TRUE COPY OF THE OBJECTION DATED 11.04.2009.
EXT.P5 : TRUE COPY OF THE ORDER DATED 31.03.2006.
EXT.P6 : TRUE COPY OF THE BILLING DETAILS FROM 5/2007 TO
4/2008.
EXT.P7 : TRUE COPY OF THE ORDER DATED 02.05.2009.
EXT.P8 : TRUE COPY OF THE SRO NO.250/2005.
EXT.P9 : TRUE COPY OF THE COMPLAINT DATED 04.05.2009.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE.
rv
B.P. RAY, J.
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W.P.(C) No.13730 of 2009
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Dated this the 23rd day of February, 2012.
JUDGMENT
Heard the learned counsel for the petitioner and the learned Standing Counsel 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. 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 W.P.(C) No. 13730/2009 : 2: 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:
"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 W.P.(C) No. 13730/2009 : 3: 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 learned counsel for the petitioner submits that in pursuance to the interim order dated 15.05.2009, the petitioner has paid ` 10 lakhs and the balance of 50% of the demand shall be deposited within one month from today. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 20.03.2012. It is open to the petitioner to raise all relevant points including leading of evidence in support of the case before the assessing authority, if so advised.
Writ petition is disposed of as above.
sd/- B.P. RAY, JUDGE.
rv W.P.(C) No. 13730/2009 : 4: B.P. RAY, J.
W.P.(C) No. 13730/2009 : 5:
----------------------------------------------------------- O.P.No. 13887 of 2002
------------------------------------------------------------- Dated this the 12th day of January, 2012.
JUDGMENT