Kerala High Court
Davis K.P vs Kerala State Electricity Board on 19 April, 2012
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 27TH DAY OF MAY 2014/6TH JYAISHTA, 1936
WP(C).No. 20026 of 2013 (C)
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PETITIONER:
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DAVIS K.P.,
KUTHOOR HOUSE,
KUNNAMKULAM, THRISSUR DISTRICT.
BY ADVS.SRI.J.JULIAN XAVIER
SRI.FIROZ K.ROBIN
RESPONDENTS:
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1. KERALA STATE ELECTRICITY BOARD,
VYDHUTHI BHAVANAM, PATTOM, TRIVANDRUM,
REPRESENTED BY ITS SECRETARY.
2. DEPUTY CHIEF ENGINEER,
ELECTRICAL CIRCLE, THRISSUR.
3. ASSISTANT ENGINEER,
ELECTRICAL SECTION, KUNNAMKULAM.
4. ANTI POWER THEFT SQUAD,
PALAKKAD,
REP.BY ITS ASSISTANT EXECUTIVE ENGINEER,
APTS, PALAKKAD.
5. KERALA STATE ELECTRICITY REGULATORY COMMISSION,
KPFC BHAVANAM, C.V.RAMAN PILLAI ROAD, VELLAYAMBALA,
THIRUVANANTHAPURAM - 695 010.
R1-R5 BY ADV. SMT.NAZEEBA.O.H., SC, KSEB.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-05-
2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMG
WP(C).No. 20026 of 2013 (C)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1: - TRUE COPY OF THE MAHAZAR DATED 19/4/2012 PREPARED BY
THE 4TH RESPONDENT.
EXT.P2: - TRUE COPY OF THE PROVISIONAL ASSESSMENT BILL
DATED 20/4/2012.
EXT.P3: - TRUE COPY OF THE OBJECTION DATED 25/4/2012.
EXT.P4: - TRUE COPY OF THE FINAL BILL DATED 9/5/2012.
EXT.P4(A)-: TRUE COPY OF THE COVERING LETTER.
EXT.P5: - TRUE COPY OF THE CHART PREPARED BY THE PETITIONER WITH
REGARD TO CONSUMER NO.8977.
EXT.P6: - TRUE COPY OF THE REGULATORY COMMISSION'S ORDER
DATED 19/1/2010.
EXT.P7: - TRUE COPY OF THE JUDGMENT DATED 22/5/2012 IN WPC
NO.11629/2012.
EXT.P8: - TRUE COPY OF THE COVERING LETTER DATED 28/5/2012.
EXT.P9: - TRUE COPY OF THE ORDER DATED 2/7/2012 ISSUED BY THE
3RD RESPONDENT.
EXT.P10: - TRUE COPY OF THE JUDGMENT DATED 16/7/2012.
EXT.P11: - TRUE COPY OF THE APPEAL DATED 31/7/2012 FILED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P12: - TRUE COPY OF THE ORDER DATED 19/10/2012 ISSUED BY THE
2ND RESPONDENT.
EXT.P13: - TRUE COPY OF THE JUDGMENT DATED 7/11/2012 IN WPC
NO.26237/2012.
EXT.P14: - TRUE COPY OF THE ORDER DATED 25/6/2013.
RESPONDENTS' EXHIBITS
NIL
True copy
P.A. ToJudge
AMG
C.K. ABDUL REHIM, J.
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W.P.(c) No. 20026 OF 2013
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DATED THIS THE 27th DAY OF MAY, 2014.
J U D G M E N T
This is in the fourth round of litigation in which the petitioner is approaching this court challenging an assessment of penalty imposed under section 126 of the Electricity Act 2003. The petitioner has got 3 electric connections in the distinct floors of a Bar Hotel building. An inspection was conducted on the premise on 19.4.2012, in which unauthorised additional load was detected in consumer No.8977 provided in the 1st floor of the building. The authorised connected load of the said electric connection was 8 KW and the total load detected was 22 KW. Therefore the authorised officer had proceeded to impose penalty with respect to the extent of 14 KW of unauthorised additional load detected. Initially, the petitioner filed objections to the provisional assessment. He had placed reliance on Ext.P6 order passed by the 5th respondent. When the objections were not considered, the W.P.(c) No. 20026/2013 -2- petitioner approached this court in a writ petition. In Ext.P7 judgment this court found that the matter need reconsideration in the light of the objections filed and in view of the order passed by the 5th respondent. Therefore the matter was remitted to the authorised officer to pass fresh orders. Thereafter Ext.P9 order was issued finalising the assessment, which was again challenged before this court in WP(C).No.16372/2012. Finding that the assessing authority has not considered the directions contained in Ext.P7 judgment with respect to consideration of Ext.P6 order, the petitioner was permitted to raise all such contentions before the appellate authority by filing appeal, as contemplated under section 127. Accordingly the petitioner had approached the 2nd respondent/appellate authority. Ext.P12 is the order passed by the appellate authority. Challenging Ext.P12 the petitioner had approached this court again in yet another writ petition filed. In Ext.P13 judgment this court found that all the contentions raised by the petitioner was not adverted to by W.P.(c) No. 20026/2013 -3- the appellate authority. Observing that there was no reasoning mentioned in Ext.P12 as to why those contentions are not acceptable, the writ petition was allowed, and Ext.P12 order was quashed. The 2nd respondent was directed to pass fresh orders on the appeal, after affording opportunity of personal hearing, in the light of the observations contained in that judgment. Exhibit P14 is the consequential order issued by the appellate authority. It is challenging Ext.P14, this writ petition is filed.
2. Contentions of the petitioner can be summarized mainly under 3 grounds. Firstly, the petitioner had disputed the detection of unauthorised additional load. But the appellate authority, which is the final fact finding authority, had categorically found that the inspecting team had detected unauthorised additional load of 14 KW, which cannot be disputed by the petitioner by producing any convincing materials. Second contention of the petitioner is that the total connected load of all the 3 connections provided in the building, if put together, will not exceed the W.P.(c) No. 20026/2013 -4- total connected load detected at the time of inspection. Therefore imposition of penalty based on detection of additional load in one of the connections cannot be sustained. The said contention was rightly repelled by the appellate authority by observing that, each connections are provided on the basis of separate agreements which stipulate the total connected load authorised to be installed in each such connections. If additional load is detected in anyone of the electric connections, over and above the sanctioned connected load, the same will become unauthorised additional load. The unauthorised additional load, if detected, is liable to be penalised under Section 126, because it will amount unauthorised usage of electricity contemplated under Section 126. This court do not find any ground to deviate from the conclusion arrived by the appellate authority in this regard.
3. The third and foremost contention raised by the petitioner is based on Ext.P6 order passed by the 5th respondent Commission. Evidently a dispute was raised W.P.(c) No. 20026/2013 -5- before the Commission regarding the method of computing penalty on energy charges when the unauthorised additional load is detected. The method of calculating consumption on the additional unauthorised load by adding a portion of the recorded consumption on the presumption that it is the part of energy consumed through the additional unauthorised load, was impugned as an illegal and irregular method. The 5th respondent found that the method can be found more logical, if the average monthly consumption for the last 12 months before the additional unauthorised load is connected and the monthly energy consumption after the unauthorised load is connected is determinable, and used for computing the penalty to be imposed on energy charges. Hence the Commission ordered that the difference between average monthly consumption for the last 12 normal months before the additional unauthorised load is connected and the monthly average consumption after the unauthorised load is connected shall be used for computing the penalty. Relying on the above W.P.(c) No. 20026/2013 -6- said conclusions contained in Ext.P6, the petitioner contended that, the method of calculation adopted is unsustainable with respect to computation of penalty on energy charges. But the appellate authority had categorically found that such method can be adopted only in a case where the exact date of connection of unauthorised load is evident on determinable. In the case at hand there is no materials produced or evidence adduced to prove that the unauthorised additional load was connected on any particular date. Therefore it is held that the method of computation of the consumption in the unauthorised load is sustainable.
4. On an anxious consideration of the issue, this court is inclined to agree with the findings of the appellate authority. The method proposed in Ext.P6 order of the 5th respondent is applicable only in cases where the date of connection of the unauthorised additional load is ascertainable. In cases like the one at the hand, there is no evidence or materials available to show that the W.P.(c) No. 20026/2013 -7- unauthorised additional load was connected on any particular date. Therefore the average monthly consumption for a period of one year prior to such date of connection cannot be ascertained. Hence the method of calculation by taking proportionate consumption on the additional unauthorised load is perfectly justified.
5. Learned counsel for the petitioner contended that, in cases where the exact date of unauthorised connection is not ascertainable, average monthly consumption for a period prior to one year of the date of detection has to be adopted. This contention is raised based on the fact that the maximum period for which the penalty can be imposed is one year prior to the detection. Eventhough the statute imposes a limitation with respect to the period for which the penalty can be imposed, no presumption can be drawn to the effect that the date of connection of unauthorised additional load is the date prior to one year of the date of detection. Therefore the argument in this line does not seems to be convincing or acceptable.
W.P.(c) No. 20026/2013 -8-
6. Under the above mentioned circumstances, none of the grounds raised in challenge of Ext.P14 order deserves merit. Consequently the writ petition fails and the same is hereby dismissed.
7. However, the petitioner is permitted to remit the balance amount outstanding, within a period of one month. If remittance is made within the said period he shall be exonerated from the liability of surcharge on belated payment.
Sd/-
C.K. ABDUL REHIM JUDGE Pmn/AMG True copy P.A. to Judge