Remanded

Tom Sunil Xavier v. Kerala State Electricity Board

Kerala HC1 Feb 2012WP(C)/23515/2008

Case brief

AI extract

What is this about?

The High Court followed the Supreme Court in Executive Engineer v. Sitaram Rice Mill, holding that electricity overdrawal is an unauthorised use. It set aside the penalties imposed by authorities, remanding the matter for reassessment with a hearing opportunity and requiring the petitioner to deposit 50% of demand.

What did the court decide?

Order of assessing and appellate authorities set aside and matter remanded for fresh assessment; petitioner directed to deposit 50% demand and appears.

Tom Sunil Xavier Vs Kerala State Electricity Board — Landlord and Tenant | 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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WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933

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WPC.No. 23515 of 2008 (Y)

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PETITIONER:

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TOM SUNIL XAVIER,MANAKKIL HOUSE PANAMPILLY NAGAR, COCHIN-26.

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BY ADV. SRI.S.RAMESH BABU

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RESPONDENTS:

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KERALA STATE ELECTRICITY BOARD

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REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM

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PATTOM, THIRUVANANTHAPURAM.

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THE ASSISTANT ENGINEER,

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ELECTRICAL SECTION, GIRINAGAR, COCHIN-20

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BY SRI.P.P.THAJUDEEN, SC, K.S.E.B SRI.C.K.KARUNAKARAN, SC, KSEB SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN,SC,K.S.E.B

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC.No. 23515 of 2008 (Y)

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: 2:

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1	: TRUE COPY OF THE UNDATED COMMUNICATION OF THE
	2ND RESPONDENT.
EXT.P2	: TRUE COPY OF THE DEMAND DATED 22.07.2008.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

P.A. TO JUDGE

B.P. Ray, J.

====================================

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W.P.(C). No.23515 of 2008

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====================================

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Dated this the 1^st day of February, 2012.

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JUDGMENT

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Heard the learned counsel for the petitioner and the learned Standing

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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 Executive Engineer and another v. Sitaram Rice Mill reported in

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(2010 (4) KHC 1) 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. 45. 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'

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W.P.(C)No.23515/2008

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-:2:-

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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 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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3. In that view of the authoritative pronouncement of the Apex Court, I

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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

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W.P.(C)No.23515/2008 -:3:-

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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 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 and the amount, if any deposited, shall be adjusted. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 14.2.2012. 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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sd/- B.P. Ray, Judge.

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Tom Sunil Xavier v. Kerala State Electricity Board

Case brief

What is this about?

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Tom Sunil Xavier v. Kerala State Electricity Board

Case brief

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What did the court decide?

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