Remanded

P.a.Salim v. Kseb

Kerala HC17 Feb 2012WP(C)/11807/2010

Case brief

AI extract

What is this about?

The High Court held that consumption of electricity exceeding the sanctioned/connected load amounts to unauthorized use under the Electricity Act, 2003. The Court set aside previous orders and remanded the matter to the assessing authority to decide afresh within two months, considering regulatory observations and Apex Court judgments.

What did the court decide?

Petitioner directed to deposit 50% of the demand within one month and appear before the assessing authority on 09.04.2012; matter remanded for fresh disposal.

P.a.Salim Vs Kseb — Contract and Commercial Disputes | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE B.P.RAY

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FRIDAY, THE 17TH DAY OF FEBRUARY 2012/28TH MAGHA 1933

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WP(C).No. 11807 of 2010 (A)

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PETITIONER:

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P.M.SALEEM, 1/1083 A, KUNNUMPURAM, KOCHI-1.

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BY ADVS.SRI.K.K.M.SHERIF, SRI.LAL K.JOSEPH, SRI.A.A.ZIYAD RAHMAN, SRI.V.R.REKESH.

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RESPONDENTS:

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1. KERALA STATE ELECTRICITY BOARD, VYDHYUDHI BHAVANAM, PATTAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.

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2. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, ERNAKULAM.

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3. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, MATTANCHERY.

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4. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, FORT KOCHI.

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5. KERALA STATE ELECTRICITY REGULATORY COMMISSION, VELLAYAMBALAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN.

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R1 TO R4 BY SRI. SANTHALINGAM, S.C R5 BY SRI.P.NANDAKUMAR,S.C.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).NO.11807/2010-A:

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P.1: COPY OF THE RECEIPTS (2 NOS.) DTD. 24/09/2008 EVIDENCING THE PAYMENT OF RS.525/-.

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EXT.P.2: COPY OF THE MAHAZER PREPARED IN THE SAID INSPECTION DTD. 22/10/2008.

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EXT.P.3: COPY OF THE NOTICE DTD. 02/01/2010.

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EXT.P.3.A: COPY OF THE INVOICE ALONG WITH THE CALCULATION STATEMENT.

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EXT.P.4: COPY OF THE OBJECTION DTD. 15/01/2010.

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EXT.P.5: COPY OF THE ORDER BEARING NO.4201/AE/FCN/27-2-10/09-10.

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EXT.P.6: COPY OF THE COMMUNICATION BEARING NO.DB1-1/SALEEM/09-10/4031 DTD. 02/02/2010.

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EXT.P.7: COPY OF THE B.O(FB) NO.1291/2002. (PLG.COM 4206/01) DTD. 18/09/2002. EXT.P.8: COPY OF THE B.O.(FM) NO.368/2008 (DPC1/C-G1/182/2007 DTD. 07/02/2008 ISSUED BY THE R.1.

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RESPONDENTS' EXHIBIT:

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EXT.R1: COPY OF THE STATEMENT FILED BY THE K.S.E.B IN W.P. NO. 23515/2008.

//TRUE COPY//

P.A. TO JUDGE.

Prv.

B.P.RAY, J.

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W.P.(C)No.11807 OF 2010

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Dated this the 17^th day of February, 2012

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JUDGMENT

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Heard the learned counsel for the petitioner and the learned standing counsel Sri.P.Santhalingam for the Kerala State Electricity Board.

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The issue involved in this case is squarely covered by the decision in C.A.No.8859 of 2011 dated 20^th October, 2010 [Executive Engineer and another v. Sitaram Rice Mill] wherein the Apex Court in paragraphs 44 and 46 held as follows:

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“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.

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xxxxx

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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 the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations. In

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W.P.(C)No.11807 OF 2010

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:: 2 ::

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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:

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“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.”

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In that view of the authoritative pronouncement of the Apex Court,

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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 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

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W.P.(C)No.11807 OF 2010

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:: 3 ::

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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 amount, if any 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 09.04.2012. It is open to the petitioner to raise all relevant points before the assessing authority, if so advised.

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Writ petition is disposed of as above.

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B.P.RAY, JUDGE

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jes

P.a.Salim v. Kseb

Case brief

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P.a.Salim v. Kseb

Case brief

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