Remanded

Vijayalekshmi Amma v. Kerala State Electricity Board

Kerala HC1 Mar 2012WP(C)/5001/2012

Case brief

AI extract

What is this about?

In a writ petition challenging an order under the Electricity Act, 2003, the Court followed the Supreme Court decision in Executive Engineer v. Sitaram Rice Mill regarding unauthorized use of electricity. It set aside the assessing order and remanded the matter for fresh disposal upon the petitioner depositing 50% of the demand.

What did the court decide?

Order of assessing authority set aside and matter remanded for fresh disposal upon petitioner depositing 50% of demand.

Vijayalekshmi Amma Vs Kerala State… — Pension and Retirement Benefits | 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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THURSDAY, THE 1ST DAY OF MARCH 2012/11TH PHALGUNA 1933

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WP(C).No. 5001 of 2012 (A)

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PETITIONER:

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VIJAYALEKSHMI AMMA W/O.SANKARA PILLAI, AGED 55 YEARS, KRISHNA BHAVAN NEELESWARAM P.O.,KOTTARAKKARA, KOLLAM

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BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.DIPU JAMES SRI.K.P.UNNIKRISHNAN (ELOOR)

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RESPONDENT(S):

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1. KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM, REP.BY ITS SECRETARY 695004

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2. DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD ELECTRICAL CIRCLE OFFICE, KOTTARAKKARA-691506

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3. ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, KOTTARAKKARA-691506

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4. SUB ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, KOTTARAKKARA-691506

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R1-R4 BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5001 of 2012 (A)

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APPENDIX -------

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PETITIONER(S) EXHIBITS

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----------------------

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EXT.P1:TRUE COPY OF THE PROVISIONAL PENAL BILL DTD 22/6/2011 EXT.P2:TRUE COPY OF THE OBJECTION DTD 30/6/2011 EXT.P3:TRUE COPY OF THE ORDER DTD NIL EXT.P4:TRUE COPY OF THE APPEAL MEMORANDUM DTD 16/8/2011 EXT.P5:TRUE COPY OF THE ORDER DTD 24/12/2011 EXT.P6:TRUE COPY OF THE NOTICE DTD 7/2/2012

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RESPONDENT'S EXHIBITS

/ TRUE COPY /

P.A. TO JUDGE

B.P.RAY, J.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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W.P.(C)No.5001 OF 2012

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1^st day of March, 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.5001 OF 2012

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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.5001 OF 2012

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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. Since, it is submitted that the petitioner has paid more than 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.

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Writ petition is disposed of as above.

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B.P.RAY, JUDGE

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jes

Vijayalekshmi Amma v. Kerala State Electricity Board

Case brief

What is this about?

What did the court decide?

Vijayalekshmi Amma v. Kerala State Electricity Board

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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