Kerala High Court
The Chairman vs The Assistant Executive Engineer on 22 September, 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
FRIDAY, THE 16TH DAY OF MARCH 2012/26TH PHALGUNA 1933
WP(C).No. 3147 of 2012 (P)
PETITIONERS:
1. THE CHAIRMAN,
HIDAYA CHARITABLE FOUNDATION
(MANAGING HIDAYA PUBLIC SCHOOL)
O.P 12/683 E,KAILAMANDAM DESOM,PANTHEERANKAVU P.O.,
KOZHIKODE, KERALA 673 019,
REPRESENTED BY ITS PRESENT CHAIRMAN,
V. MUHAMMAD ABDULRAHMAN MADANI.
2. C.P.MOIDEENKUNHI
S/O.AHAMMAD HAJI,AGED 51 YEARS
CHATTIPURA PAZHANICOLIL HOUSE,P.O.FEROKE COLLEGE,
KOZHIKODE.
BY ADV. SRI.K.M.FIROZ
RESPONDENTS:
1. THE ASSISTANT EXECUTIVE ENGINEER
ELECTRICAL SUB DIVISION
KERALA STATE ELECTRICITY BOARD,MANKAVU
CALICUT 673 004
2. THE ASSISTANT ENGINEER
ELECTRICAL SECTION,KERALA STATE ELECTRICITY BOARD
PANTHEERANKAVU, KOZHIKODE 673 004
3. THE SUB ENGINEER IN CHARGE,
ELECTRICAL SECTION,KERALA STATE ELECTRICITY BOARD
PANTHEERANKAVU,KOZHIKODE 673 004
4. THE DEPUTY CHIEF ENGINEER
ELECTRICAL CIRCLE,VAIDYUDHI BHAVANAM,GANDHI ROAD
KOZHIKODE 673 001
5. KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS CHAIRMAN,VYDHUTHI BHAVAN
THIRUVANANTHAPURAM 695 001
BY ADV. SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD
SRI.K.M.SATHYANATHA MENON,SC,KSEB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 3147 of 2012 (P)
: 2:
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: TRUE COPY OF THE PROVISIONAL BILL DATED 22.9.2011 ISSUED BY THE
ASSISTANT ENGINEER,ELECTRICAL SECTION,.PANTHEERANKAV UNDER SECTION
126 OF THE ELECTRICITY ACT(ALONG WITH TRUE ENGLISH TRANSLATION).
EXT.P2: TRUE COPY OF THE FINAL BILL DATED 12.10.2011 ISSUED BY THE
ASSISTANT ENGINEER,ELECTRICAL SECTION PANTHEERANKAVU (ALONG WITH TRUE
ENGLISH TRANSLATION).
EXT.P3: TRUE COPY OF THE RECEIPT DATED 19.10.2011 ISSUED BY THE KERALA
STATE ELECTRICITY BOARD.
EXT.P4: TRUE COPY OF THE ORDER DATED 16.1.2012 BEARING
NO.GB/APPEAL/16/2011-12/4364 ISSUED BY THE DEPUTY CHIEF
ENGINEER,ELECTRICAL CIRCLE,KOZHIKODE (ALONG WITH TRUE ENGLISH
TRANSLATION.
EXT.P5: TRUE COPY OF THE RECEIPT DATED 16-3-2010 REGARDING APPLICATION
FEE ISSUED BY THE KERALA STATE ELECTRICITY BOARD.
EXT.P6: TRUE COPY OF THE INVOICE DATED 20-05-2011 ISSUED BY TRIDENT
CORPORATION.
RESPONDENTS' EXHIBITS : NIL
//True Copy//
P.A. to Judge.
B.P. RAY, J.
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W.P.(C) No. 3147 of 2012
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Dated this the 16th day of March, 2012.
JUDGMENT
Heard the learned counsel for the petitioners 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 W.P.(C) No. 3147/2012 -:2:- 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:
"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 petitioners submits that no penalty can be W.P.(C) No. 3147/2012 -:3:- 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 petitioners 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 petitioners deposit 50% of the demand within one month. The learned counsel for the petitioners submits that 50% of the demand has already been deposited. Therefore, no further amount need be paid. In order to avoid delay, let the petitioners appear before the authority along with a copy of this judgment on 30.03.2012. It is open to the petitioners to raise all relevant points before the assessing authority, if so advised.
Writ petition is disposed of as above.
sd/- B.P. RAY, JUDGE.
rv W.P.(C) No. 3147/2012 -:4:-