Remanded

E.M.Jose v. the Deputy Chief Engineer, Electrical Ci

Kerala HC13 Feb 2012WP(C)/31693/2011

Case brief

AI extract

What is this about?

This judgment addresses a writ petition challenging electricity assessment amounts. The Court set aside the orders of the assessing and appellate authorities, remitting the case for fresh determination in light of Supreme Court precedent on unauthorized electricity consumption.

What did the court decide?

The impugned order was set aside and the matter remanded to the assessing officer for fresh disposal.

E.M.Jose Vs the Deputy Chief Engineer, Electrical Ci — Service and Employment | 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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MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933

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WPC.No. 31693 of 2011 (J)

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PETITIONER:

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E.M.JOSE, ELLIKUNNUMPURATHU HOUSE, (ELLIKUNNEL)KOLANI.P.O,NADUKANDAM,THODUPUZHA.

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BY ADVS.SRI.K.K.CHANDRAN PILLAI (SR.) SRI.A.S.SAJUSH PAUL SRI.THOMAS JAMES MUNDACKAL SRI.BOBBY THOMAS SMT.S.AMBILY

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RESPONDENTS:

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THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE,KERALA STATE ELECTRICITY BOARD THODUPUZHA-685 584.

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THE ASSISTANT ENGINEER,ELECTRICAL SECTION,NO.1,KERALA STATE ELECTRICITY BOARD THODUPUZHA-685 584.

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THE SUB ENGINEER,ELECTRICAL SECTION, NO.1,KERALA STATE ELECTRICITY BOARD, THODUPUZHA - 685 584.

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THE KERALA STATE ELECTRICIY BOARD, REPRESENTED BY ITS SECRETARY,VYDHUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM-695 004.

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THE KERALA STATE ELECTRICITY REGULATORY COMMISSION,REPRESENTED BY ITS CHAIRMAN THIRUVANANTHAPURAM-695 001.

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R5 BY SRI.ANEESH JAMES,SC,KSEB REGULATORY COM R1-R5 BY SMT.P.K.RADHIKA, SC, KSEB BY SRI.K.M.SATHYANATHA MENON,SC,KSEB

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) NO. 31693/2011

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: 2 :

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APPENDIX

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PETITIONER'S EXHIBITS:

EXT.P1

EXT.P2

EXT.P3

EXT.P4

EXT.P5

EXT.P6

EXT.P7

EXT.P8

EXT.P9 EXT.P10 EXT.P11 EXT.P12 EXT.P13 EXT.P14 EXT.P15 EXT.P16 EXT.P17 EXT.P18 EXT.P19 EXT.P20

EXT.P21

EXT.P22

EXT.P23

: TRUE COPY OF MAHAZAR PREPARED BY THE 3RD RESPONDENT DATED 29.09.2011.

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: TRUE COPY OF PROVISIONAL INVOICE PREPARED BY THE 3RD RESPONDENT DATED 30.09.2011.

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: TRUE COPY OF PROVISIONAL ASSESSMENT BILL FORWARDED ALONG WITH EXT.P2 DATED 30.09.2011.

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: TRUE COPY OF OBJECTION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 24.10.2011.

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: TRUE COPY OF FINAL INVOICE DATED 28.10.2011 ISSUED BY THE 3RD RESPONDENT.

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: TRUE COPY OF FINAL ASSESSMENT BILL SENT ALONG WITH EXT.P5 DATED 28.10.2011.

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: TRUE COPY OF APPEAL DATED 14.11.2011 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.

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: TRUE COPY OF REQUEST DATED 15.11.2011 FILED BEFORE THE 1ST RESPONDENT REQUESTING FOR WAIVER OF DEPOSIT OF 50%.

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: TRUE COPY OF ELECTRICITY BILL DATED 02.12.2010.

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: TRUE COPY OF ELECTRICITY BILL DATED 01.01.2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 01.02.2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 03.03.2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 01.04.2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 02.05.2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 01.06. 2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 01.07.2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 02.08.2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 01.09.2011.

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: TRUE COPY OF ELECTRICITY BILL DATED 01.10.2011.

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: TRUE COPY OF INVOICE PERTAINING TO PURCHASE OF AIR CONDITIONER DATED 08.03.2011.

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: TRUE COPY OF INVOICE PERTAINING TO PURCHASE OF AIR CONDITIONER DATED25.03.2011.

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: TRUE COPY OF INVOICE PERTAINING TO PURCHASE OF AIR CONDITIONER DATED12.04.2011.

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: TRUE COPY OF INVOICE PERTAINING TO PURCHASE OF AIR CONDITIONER DATED 13.05.2011.

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PETITIONER'S EXHIBITS:

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EXT.P24 : TRUE COPY OF INVOICE PERTAINING TO PURCHASE OF MICROWAVE OVEN DATED 27.05.2011.

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EXT.P25

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: TRUE COPY OF ORDER PASSED BY THE 5TH RESPONDENT DATED 19.01.2010 IN D.P. 75/09.

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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.31693/2011

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

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Dated this the 13^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

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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

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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' of electricity in terms of Section 126 of the 2003 Act. This, we also say for the reason that overdrawal of

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W.P.(C)No.31693/2011

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-:2:-

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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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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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the same in accordance with the judgment referred above. Learned

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W.P.(C)No.31693/2011 -:3:-

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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 remitted in pursuance to the interim order dated 13.12.2011 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 14.3.2012. 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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E.M.Jose v. the Deputy Chief Engineer, Electrical Ci

Case brief

What is this about?

What did the court decide?

E.M.Jose v. the Deputy Chief Engineer, Electrical Ci

Case brief

What is this about?

What did the court decide?

What the court decided

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