Remanded

Kerala Cars Pvt.Ltd. v. the Deputy Chief Engineer

Kerala HC2 Mar 2012WP(C)/5242/2012

Case brief

AI extract

What is this about?

The Court held that electricity consumption exceeding contracted load is an unauthorised use under Section 126 of the Electricity Act, 2003. The impugned orders assessing the penalty were set aside and the matter remanded for disposal in light of Supreme Court precedents.

What did the court decide?

Impugned orders of assessing and appellate authorities set aside; matter remanded to assessing authority for fresh disposal within two months with opportunity to be heard; no disconnection of supply i

Kerala Cars Pvt.Ltd. Vs the Deputy Chief Engineer — Banking and Recovery | 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 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933

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WP(C).No. 5242 of 2012 (E)

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PETITIONER:

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KERALA CARS PVT.LIMITED, KAIRALI FORD, ILLIKATTU BUILDINGS, EDAPALLY P.O. COCHIN, REPRESENTED BY ITS AUTHORISED SIGNATORY RANJINI K.P.

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BY ADVS.SRI.BABU S. NAIR

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SMT.SMITHA BABU

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RESPONDENT(S):

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1 THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, THRISSUR - 680 001.

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THE ASSISTANT ENGINEER, ELECTRICAL SECTION, MANNUTHI, THRISSUR DISTRICT PIN-680 651.

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BY SRI.JAICE JACOB,SC, KSEB

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5242 of 2012 (E)

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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 APPLICATION SUBMITTED BY THE PETITIONER DATED 22.1.2011 FOR GETTING POWER ALLOCATION FOR 37 KW FROM THE 2ND RESPONDENT.
EXT.P2	TRUE COPY OF THE ELECTRICITY BILL PAID BY THE PETITIONER DATED, 19.3.2011.
EXT.P3	TRUE COPY OF THE ELECTRICITY BILL PAID BY THE PETITIONER DATED, 19.5.2011.
EXT.P4	TRUE COPY OF THE ELECTRICITY BILL PAID BY THE PETITIONER DATED, 15.7.2011.
EXT.P5	TRUE COPY OF THE ELECTRICITY BILL PAID BY THE PETITIONER DATED, 23.9.2011.
EXT.P6	TRUE COPY OF THE NOTICE ISSUED BY THE K.S.E.B TO THE PETITIONER DATED, 17.12.2011.
EXT.P7	TRUE COPY OF THE PROVISIONAL PENAL BILL ISSUED BY THE K.S.E.B, TO THE PETITIONER, DATED, 17.12.2011.
EXT.P8	TRUE COPY OF THE STATEMENT GIVEN TO THE 2ND RESPONDENT BY THE MANAGER OF THE PETITIONER DT.28.12.2011.
EXT.P9	TRUE COPY OF THE ENGLISH TRANSLATION OF THE EXHIBIT P8 STATEMENT.
EXT.P10	TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED,13.1.2012.
EXT.P11	TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE FIRST RESPONDENT DATED, 31.1.2012.
EXT.P12	TRUE COPY OF THE BILL SHOWING THE PAYMENT OF RS.64,868/- AND RS.300/- DATED, 31.1.2012.

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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.5242 of 2012

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

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Dated this the 2^nd day of March, 2012.

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JUDGMENT

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Heard the learned counsel for the petitioner and the learned

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Standing Counsel for the Kerala State Electricity Board.

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The issue involved in this case is squarely covered by the

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decision in Executive Engineer and another v. Sitaram Rice Mill

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reported in (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 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

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W.P.(C)No.5242/2012

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-:2:-

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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

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Court, 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

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W.P.(C)No.5242/2012 -:3:-

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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. The learned counsel for the petitioner submits that an amount of 64,868/- has been paid and balance amount of30,000/- shall be paid within one month from today. In order to avoid delay, let the petitioner appear before the authority along with a copy of this judgment on 20.03.2012. It is open to the petitioner to raise all relevant points before the assessing authority, if so advised. Till the disposal of the re-assessment, there shall be no disconnection of electricity to the petitioner's premises.

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Writ petition is disposed of as above.

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sd/- B.P. RAY, JUDGE.

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Kerala Cars Pvt.Ltd. v. the Deputy Chief Engineer

Case brief

What is this about?

What did the court decide?

Kerala Cars Pvt.Ltd. v. the Deputy Chief Engineer

Case brief

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What did the court decide?

What the court decided

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