Kerala High Court
K. Raveendran Nair vs Kerala State Electricity Board on 16 May, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE B.P.RAY
THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934
WP(C).No. 5070 of 2008 (C)
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PETITIONER(S):
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K. RAVEENDRAN NAIR,
VIPURANAM, EVRA - 130, T.C.40/665
EDAPPAZHINJI, THIRUVANANTHAPURAM.
BY ADVS.SRI.D.KISHORE
SMT.MEERA GOPINATH
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM
PATTOM, THIRUVANANTHAPURAM.
2. THE DEPUTY CHIEF ENGINEER,
ELECTRICAL CIRCLE (URBAN), KERALA STAE ELECTRICITY
BOARD, THIRUVANANTHAPURAM.
3. THE ASSISTANT EXECUTIVE ENGINEER,
KERALA STAE ELECTRICITY BOARD, PUTHEN CHANTHA
THIRUVANANTHAPURAM.
4. THE ASSISTANT ENGINEER,
KERALA STAE ELECTRICITY BOARD, ELECTRICAL SECTION
THYCAUD, THIRUVANANTHAPURAM.
5. THE ELECTRICAL INSPECTOR,
KERALA STAE ELECTRICITY BOARD,CORPORATION BUILDING
IV TH FLOOR, PALAYAM, THIRUVANANTHAPURAM-695 033.
R,R.1 TO R5 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B
R,R1-4 BY ADV. SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SU/-
WP(C).No. 5070 of 2008 (C)
APPENDIX
PETITIONER'S EXHIBITS:
P1: COPY OF THE PROCEEDINGS NO.B2-3879/2006/EIT DATED 16-5-2007 OF THE
5TH RESPONDENT.
P2: COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF RS.24,000/- DURING
SEPTEMBER 2007.
P3: COPY OF THE BILL DATED 7-9-2007.
P3(A): COPY OF THE BILL DATED 6-11-2007.
P3(B): COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF BILL OF
NOVEMBER 2007.
P4: COPY OF THE MAHAZAR DATED 5-11-2007 PREPARED BY THE SUB
ENGINEER.
P5: COPY OF THE PROCEEDINGS NO.DB-4/UAG/RDR/07-08 DATED 15-11-
2007 OF THE 4TH RESPONDENT.
P6: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO EXHIBIT P5.
P7: COPY OF THE PROCEEDINGS NO.DB 29/GI/PTCHA/07-08/197 DATED 16-10-
2007 OF THE 3RD RESPONDENT.
P8: COPY OF THE REPLY DATED 24-10-2007 SUBMITTED BY PETITIONER TO
EXHIBIT P7.
P9: COPY OF THE PROCEEDINGS NO.EB4-VAL/RDR/07/08/112 DATED 24-11-2007
OF THE 4TH RESPONDENT.
P10: COPY OF THE APPEAL MEMORANDUM
P11: COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF RS.16,200/-
P12: copy OF THE PROCEEDINGS NO.GB/APPEAL/2007-08/2887 DATED 31-1-2008
OF 2ND RESPONDENT.
P13: COPY OF THE BILL DATED 14-12-2007.
P14: COPY OF THE BILL DATED 15-1-2008.
RESPONDENTS' EXHIBITS: NIL.
/TRUE COPY/
P.A. TO JUDGE
SU/-
B.P.RAY,J.
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W.P.(C) .No.5070 of 2008
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Dated this the 13th day of December, 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.W.P.C.No.5070 of 2008 2
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 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. W.P.C.No.5070 of 2008 3 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 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. Amount, if any, paid or deposited shall be given credit to. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 25.1.2013. 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 Su/-