The High Court of Kerala allowed the writ petition against a penalty order imposed under Section 126 of the Electricity Act, 2003 for unauthorized surplus electricity consumption.
The order of the assessing authority as well as the appellate authority is set aside and the matter is remanded to the assessing authority to decide afresh.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE B.P.RAY
TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933
WP(C).No. 16057 of 2010 (F)
PETITIONER(S):
T.S. SAJEEVAN,
NITS INSTITUTE FOR TECHNICAL STUDIES, IV/33, THAIKATTUKARA, NEXT TO KSRTC WORKSHOP, ALUVA-683 016.
BY ADV. SRI.NARAYANAN SADASIVAN PILLAI.
RESPONDENT(S):
1. THE DEPUTY CHIEF ENGINEER,
2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION,
KERALA STATE ELECTRICITY BOARD,
BY ADV. SRI.P.SANTHALINGAM, SC.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
WP(C).No. 16057 of 2010 (F)
APPENDIX
PETITIONER'S EXHIBITS:-
| EXT.P1 | COPY OF THE MAHAZAR DATED 28/10/2009. |
|---|---|
| EXT.P2 | COPY OF THE COVERING LETTER DATED 3RD NOVEMBER ENCLOSING PROVISIONAL BILL DATED 2ND NOVEMBER, 2009 OF THE 2ND RESPONDENT. |
| EXT.P2A | COPY OF THE PROVISIONAL BILL DATED 2ND NOVEMBER 2009 ISSUED BY THE KSEB. |
| EXT.P3 | COPY OF THE OBJECTIONS DATED 10/11/2009 SUBMITTED BY THE PETITIONER WITH ENCLOSURES. |
| EXT.P4 | COPY OF THE ORDER NO.INSPECTION/AN/2009-10/165 DATED 22/12/2009 DATED 22/12/2009 ISSUED BY THE 2ND RESPONDENT. |
| EXT.P5 | COPY OF THE APPEAL DATED 28/12/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. |
| EXT.P6 | COPY OF THE RECEIPT DATED 29/12/2009 ISSUED BY THE KERALA STATE ELECTRICITY BOARD. |
| EXT.P7 | COPY OF THE RECEIPT DATED 30/12/2009 ISSUED BY THE KERALA STATE ELECTRICITY BOARD. |
| EXT.P8 | COPY OF THE ORDER NO.GB/AP-62/09-10/172 DATED 16/04/2010 ISSUED BY THE 1ST RESPONDENT. |
| EXT.P9 | COPY OF THE BILL DATED FOR 4TH MAY, 2010 ISSUED BY THE KERALA ELECTRICITY BOARD. |
RESPONDENT'S EXHIBITS:-
| EXT.R2A | COPY OF THE ENERGY CONSUMPTION STATEMENT IN RESPECT |
|---|---|
| OF THE PETITIONER. |
//TRUE COPY//
P.S. TO JUDGE
rs.
B.P.RAY, J.
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W.P.(C)No.16057 OF 2010
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Dated this the 7th day of February, 2012
JUDGMENT
Heard the learned counsel for the petitioner and the learned standing counsel Sri.P.Santhalingam for the Kerala State Electricity Board.
“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.
W.P.(C)No.16057 OF 2010
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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:
“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.”
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
W.P.(C)No.16057 OF 2010
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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. Since, it is submitted that the petitioner has paid 50% of the demand, no further amount need be paid. 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.
Writ petition is disposed of as above.
B.P.RAY, JUDGE
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3 issues framed by the court
Whether the assessee authority could impose a penalty under Section 126 of the Electricity Act, 2003.
Whether the consuming of electricity in excess of the sanctioned load constitutes unauthorized use.
Whether the appellate authority should decide the question afresh on the facts of the case.
Colour shows how this judgement treated each authority
Executive Engineer and Another v. Sitaram Rice MillApplied¶37
C.A.No.8859 of 2011 dated 20th October, 2010 [Executive Engineer and another v. Sitaram Rice Mill]
Bhilari Rerollers and Others v. M.P. Electricity Board and OthersFollowed¶43
Bhilari Rerollers and others v. M.P.Electricity Board and others (2003 KHC 1521 : 2003 (7) SCC 185 : JT 2003 (7) SC 215) · Who else cites this
2 provisions across 1 enactments
T.S. Sajeevan
NITS Institute for Technical Studies
The Deputy Chief Engineer, Electrical Circle, Kerala State Electricity Board, Perumbavoor
The Assistant Engineer, Electrical Section, Kerala State Electricity Board, Aluva North
B.P. Ray
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
