Kerala High Court
Sree Anjaneya Medical Trust vs Kerala State Electricity Board Ltd on 12 January, 2022
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA, 1943
WP(C) NO.5135 OF 2017
PETITIONER:
SREE ANJANEYA MEDICAL TRUST
KANCHANS COMPLEX, OPPOSITE INDOOR STADIUM,
RAJAJI ROAD, KOZHIKODE.
BY ADVS.
SRI.A.A.ZIYAD RAHMAN
SRI.JOSEPH KURIAN VALLAMATTAM
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
SRI.SHARAN SHAHIER
SRI.M.B.SOORI
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LTD.
VYDHYUTHI BHAVANAM, PATTAM, THIRUVANANTHAPURAM,
REPRESENTED BY ITS MANAGING DIRECTOR 695 001.
2 THE ASSISTANT ENGINEER
KERALA STATE ELECTRICITY BOARD,ELECTRICAL SECTION,
ATHOLI, KOZHIKODE,PIN-673 011.
3 THE SPECIAL OFFICER (REVENUE)
KERALA STATE ELECTRICITY BOARD LTD.,VYDHYUTHI BHAVANAM,
PATTAM, THIRUVANANTHAPURAM 695 001
4 THE KERALA STATE ELECTRICITY APPELLATE AUTHORITY
(CONSTITUTED UNDER SECTION 127 OF THE ELECTRICITY ACT,
2003), C.C.51/5, NEAR 110 KV SUB STATION,
VYTTILA, KOCHI-682 019.
BY ADV SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE
ELECTRICITY BOARD
SRI.B PREMOD SC, KSEB
THIS WRIT PETITION(CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.5135/2017
2
JUDGMENT
The order of the Appellate Authority dated 17.12.2016 has been challenged by the petitioner primarily on the ground that there has not been adherence to certain provisions of Kerala Electricity Supply Code and the amendments caused therein much less the fact that the petitioner was a consumer of High Tension connection called HT II(B) tariff which is based only on demand. The contract demand of the petitioner in paragraph 2 of the pleading is 250 KVA. The petitioner is running a Medical College named Malabar Medical College situated in a property having an extent of 3.2 Acres of land bounded by compound wall completely within the said campus, there also exists Dental College, hostels, staff quarters, canteens, water treatment plant, laundry etc.
2. On 29.6.2016, the anti-power theft squad conducted an inspection on the premises and prepared Ext.P1 mahazar alleging unauthorised use of energy which reveals that the petitioner had extended the power connection provided under the HT II(B) for the purpose of running an ATM and canteen WP(C) No.5135/2017 3 which were situated in the Medical College campus and amounted to unauthorised use as per the provisions of Section 126 of the Electricity Act, 2003 which resulted into issuance of Ext.P2 provisional assessment notice demanding a sum of Rs.59,31,009/- as penalty. On 15.7.2016, objections were submitted vide Ext.P3. But, the second respondent rejected the same which resulted into Ext.P4 final assessment order dated 29.7.2016. It was found that the total permissible connected load of the petitioner was 630.28 KW whereas the connected load found at the time of inspection was 871.68 KW. Thus there was an excess connected load of 241.4 KW which has been penalised. The petitioner preferred an appeal before the Appellate Authority and paid 50% of the amount which resulted into passing of the impugned order.
3. Sri.Lal K.Joseph, learned counsel appearing on behalf of the petitioner, in support of the present Writ Petition, has raised the following submissions :
(a) Neither the assessing authority while passing a final assessment order nor the Appellate Authority noticed the WP(C) No.5135/2017 4 provisions of Regulations 153 (10) and (15) of the Electricity Supply Code, 2014 as the unauthorised additional load in the same premises under the same tariff shall not be reckoned as 'unauthorised use of electricity'.
(b) Unauthorised additional load in the same premises under the same tariff shall not be reckoned as 'unauthorised use of electricity'. An effort should be made to regularise the aforementioned.
(c) Since the petitioner was HT connection holder whatever the consumption was being used over and above the sanctioned load was billed and has been paid. But, despite that a penalty has been imposed twice the fixed charges and energy charges.
(d) As per Ext.P9 site plan, Medical College is an integral part as well as a minimum standard is required for the Medical College as per the existing regulations of the Medical Council of India. It cannot run without the facility of a hostel for both women and men and other facilities like staff quarters, accommodation etc. as referred to in the WP(C) No.5135/2017 5 final assessment order.
(e) Tariff applicable to all the classes of the consumers listed under LT VI (F) category availing supply of electricity under the high tension would not have charged on both the heads twice the fixed charges and energy charges.
(f) The connected load as far as the high tension has no significance as what is relevant is the contract demand which is 250 KWA or a maximum demand.
4. It is not the case of the respondents that the consumption of additional requirement was not recorded in the meter or the meter was not properly working. All the consumption including the unauthorised use was being recorded in the meter and the bills were being issued based upon the said readings. Thus penalty could not have been charged on consumption charges is not sustainable. From Ext.P7, it is evident that the penalty of Rs.25,74,933/- has been imposed on demand charges. In fact the tariff order issued by the Kerala State Electricity Regulatory Commission from time to time do not authorise the Electricity Board to apply the tariff on the basis of WP(C) No.5135/2017 6 a connected load. It is the demand charges which have to be calculated either on the basis of 75% of the contract demand or actual maximum demand recorded in the meter whichever is higher. Thus for all intents and purposes tariff does not contain a rate based on a connected load. As per the provisions of Section 126(6) of the Electricity Act, 2003, assessment of penalty has to be calculated twice the tariff applicable. But, in this case tariff applicable was HT II (B) which contains only demand charges. Therefore, the penalty could not have been charged as per Section 126(6) of the Act (hereinafter referred to as 'the Act'). Though the order of the Appellate Authority appears to have been passed in favour of the petitioner, it does not amount to give any relief to the petitioner as the Electricity Board has been directed to issue revised assessment at two times the rate under the HT II (B) General Tariff for demand charges and proportionate energy charges i.e., both on fixed and energy charges twice on account of unauthorised extension. It amounts to double taxation.
5. On the other hand Sri.Pramod, learned Standing WP(C) No.5135/2017 7 Counsel appearing on behalf of the Electricity Board, submitted that the assessing authority while hearing the objections of the petitioner had passed a detailed order rejecting the plea of the consumer declining cash receipt towards the remittance of property tax for the year 2015-16. The total connected load detected at the time of the extension was 871.68 KW against the authorised load of 630.28 KW. Thus 241.4 KW was unauthorisedly extended. No proof was submitted by the representative of the hospital to substantiate the claim. An agreement, at the time of issuance of the sanctioned load and the contract demand was entered where a site plan was also enclosed and the sanctioned load was issued only for the Medical College and laundry and not for hostel facilities, staff water, etc. At the time of inspection, the load was found to be extended to the premises which was not part of the building and therefore, the benefits, as sought to be taken thereof, of the provisions of the Kerala Electricity Supply Code, 2014 would not be applicable as it is not a part of the same premises as per the definition of the 'premises' prescribed therein. No such application was WP(C) No.5135/2017 8 submitted by the college or representative for extension of the load or increase in the contract demand. In fact the maximum demand had been continuously exceeded the contract demand for several months and therefore, commercial tariff on unpaid use was confined for a period of twelve months. Application for extension of enhancement of the load was submitted only after the inspection i.e., on 28.10.2016. It is rightly so the department has taken the aid of provision of subsection (6) of Section 126 of the Act. As per Clause 15 of Ext.P1 agreement, it was clearly mentioned that the consumer will be liable to pay charges for the excess demand drawn at 150% of the demand charges notified by the Board from time to time or such other revised percentages as fixed by the Board. The consumer had diverted the terms and provisions of the clauses of the agreement putting a load on additional equipments used in the hostels and staff quarters. Thus it was unauthorised extension of the power and urges this Court for dismissal of the Writ Petition.
6. I have heard the counsel for the parties and appraised the paper book.
WP(C) No.5135/20179
7. For dealing with the respective contentions of the parties, it would be expedient to extract the provisions of Clauses 10 and 15 of Regulation 153 of the Kerala Electricity Supply Code, 2014 as well as the amendment. The same read as under:
"(10) If it is found that additional load has been connected without due authorisation from the licensee and contract demand has been exceeded, steps may be initiated to regularise the additional load and to enhance the contract demand in addition to collection of demand charges as per the agreement conditions, for the recorded maximum demand at the rates approved by the Commission:
Provided that such regularisation of additional load and enhancement of contract demand shall be done only after ensuring that wiring has been done in conformity with the provisions of Central Electricity Authority (Measures relating to safety and electric supply) Regulations, 2010 as amended from time to time."
"(15) Unauthorised additional load in the same premises and under same tariff shall not be reckoned as 'unauthorised use of electricity except in the case of consumers billed on the basis of connected load."
8. 'Premises' have been defined as per Section 2(67) of the aforementioned Code. The same reads as under:
"premises" includes any land or building or structure which is included in the details and sketches specified in the application or in the agreement for grant of electric connection or in such other records relating to revision of connected load or contract demand."
9. On perusal the definition of 'premises' would include WP(C) No.5135/2017 10 any land or building or structure including the detailed sketches specified in the application or in the agreement for grant of electric connection or such other records relating to revision of connected load or contract demand. The question which has been raised in this Writ Petition for approving the order of the Appellate Authority in accepting the demand of the electricity in the case of unauthorised electricity used by putting additional load of 241.4 KW in the sense that it was extension of the electricity line to the premises not defined within the agreement or the sketch is provided at the time of obtaining the connection. At the time of hearing before the authority competent to pass final assessment order, the consumer placed on record cash receipt towards the remittance of the property tax for the year 2015-2016 and inward receipt of re-submission of layout plan from Atholi and Balussery Grama Panchayats. Those have been rejected by simply terming them to be not self explanatory. The reasons aforementioned do not suffice the requirement of cogent reasons in legal terms. It is settled law that quasi judicial authority dealing with the documents or the contentions is WP(C) No.5135/2017 11 expected to assign reasons in rejecting the documents. However, the order of the final authority do not reflect any such reasons as to how and in what manner they are not self explanatory. The same very grounds were also taken before the Appellate Authority by referring to the provisions of Clauses 10 and 15 of the Supply Code for countenancing the arguments that it was the same premises as Medical College consisting of hostel, staff quarters and other facility is an integral part and not as sought to be applied by the Electricity Board.
10. The order of the Appellate Authority do not reveal any reference to the aforementioned provisions. Things do not stop there. Concededly the petitioner has availed a high tension connection under HT II(B) tariff and whatever the equipment was found to have been used tantamounting to excessive load have already been recorded in the meter, billed and paid. It has never been the case of the Electricity Department that the petitioner had deceived the assessing authority in making the lesser payment. But, it was the only case of unauthorised usage of extra load than the one allotted. The Appellate Authority has WP(C) No.5135/2017 12 even not adverted to the contract demand which as per the pleadings in the present Writ Petition was 250 KVA. There is a difference between Kilo Volt Ampere and Kilo Watt. The tariff as formulated by the Kerala State Electricity Regulatory Commission for a particular assessment year deals with charging of the same for different connections and for high tension (HT) and extra high tension (EHT) tariff. The billing demand is based upon by recording the maximum demand for the month in KVA or 75% of the contract demand whichever is higher. But, on perusal of the final assessment order and the demand raised after the order of the Appellate Authority, the calculations are conspicuously wanting as to how and in what manner a penalty and penalty charges have been imposed. This exercise requires to be revisited at the level of the Appellate Authority which is a panel of expert authority, to decide afresh the controversy by pondering upon the provisions aforementioned, including the provisions of Section 156(6) and any other additional material the parties to the lis rely upon for effectual and proper adjudication of the issue.
WP(C) No.5135/201713
Accordingly, the order of the Appellate Authority Ext.P6 and the demand raised by Ext.P7 thereafter are set aside. The parties are directed to appear before the Appellate Authority on 3.3.2022. The Appellate Authority shall endeavour to decide the appeal within a period of two months from the date of receipt of a certified copy of this judgment. The interim order granted by this Court shall continue till the decision of the appeal.
Sd/-
AMIT RAWAL, JUDGE
csl
WP(C) No.5135/2017
14
APPENDIX OF WP(C) 5135/2017
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE MAHAZER DATED
29.06.2016 PREPARED BY THE ANTI POWER
THEFT SQUAD.
EXHIBIT P2 TRUE COPY OF THE PROVISIONAL ASSESSMENT
NOTICE DATED 2.07.2016.
EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED
5.07.2016.
EXHIBIT P4 TRUE COPY OF THE FINAL ORDER BEARING
NO.BB/2016-17/INSPN/HT-II B19/6255 DATED 29.07.16.
EXHIBIT P5 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 24.10.2016.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 17.12.2016 IN APPEAL NO.235/2016 PASSED BY THE 4TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION BEARING NO.AE/ES ATHOLI/DB-32/16-17/304 DATED 20.01.2017 ALONG WITH THE FINAL BILL AND CALCULATION STATEMENT.
EXHIBIT P8 TRUE COPY OF THE RELEVANT PORTIONS OF MINIMUM STANDARD OF REQUIREMENT FOR THE MEDICAL COLLEGE, PRESCRIBED BY THE MEDICAL COUNCIL OF INDIA.
EXHIBIT P9 TRUE COPY OF THE SKETCH EVIDENCING ALL THE INSTITUTIONS SUCH AS HOSPITAL, COLLEGE, CANTEEN, HOSTEL, ETC ARE SITUATED IN A LARGE COMPOUND BOUNDED BY WP(C) No.5135/2017 15 COMPOUND WALLS.
EXHIBIT P10 TRUE COPY OF THE DISCONNECTION NOTICE DATED NIL ISSUED BY THE 2ND RESPONDENT.