Allowed

Highway Garden Drive in(P)Ltd. v. Deputy Chief Engineer, Kseb

Kerala HC2 Mar 2012WP(C)/8156/2006

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, setting aside the orders of the assessing and appellate authorities. The court remitted the matter to the assessing officer to decide afresh in conformity with the Supreme Court's judgment regarding minimum energy charges and unauthorized use of electricity.

What did the court decide?

Order of assessing authority and appellate authority set aside; matter remitted to assessing officer for disposal in conformity with Supreme Court judgment.

Highway Garden Drive in(P)Ltd. Vs Deputy Chief Engineer, Kseb — Kerala HC (2012) — LawSathi Research

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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. 8156 of 2006 (U)

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PETITIONER:

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HIGHWAY GARDEN DRIVE IN (P) LTD., BYPASS ROAD, PADIVATTOM, KOCHI-24 REP. BY ITS EXECUTIVE DIRECTOR, ROJAN CHACKO.

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BY ADVS.SRI.P.S.GEORGE

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SRI.JOBY CYRIAC

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RESPONDENTS:

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THE DEPUTY CHIEF ENGINEER,

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KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE,

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POWER HOUSE ROAD, KOCHI-18.

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THE ASST.ENGINEER,

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ELECTRICAL SECTION, KSEB, PALARIVATTOM ERNAKULAM.

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THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYTHUTHI BHAVAN THIRUVANANTHAPURAM.

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BY SRI.C.K.KARUNAKARAN, SC FOR KSEB

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SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN,SC,K.S.E.BOARD SRI.JOSE J.MATHEIKEL, SC, KSEB

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 8156 of 2006 (U)

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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

: COPY OF BILL DATED 24.10.2005 ISSUED BY THE KESB.

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: COPY OF REPORT DATED 24.10.2005 ISSUED BY THE 2ND RESPONDENT.

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: COPY OF MAHAZAR DATED 21.10.2005 BY THE APTS.

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: COPY OF OBJECTION DATED 28.10.2005 BEFORE THE 2ND RESPONDENT.

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EXT.P5 : COPY OF ORDER DATED 17.11.2005 ISSUED BY THE 2ND RESPONDENT.

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EXT.P6 : COPY OF APPEAL DATED 21.11.2005 BEFORE THE 1ST RESPONDENT.

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EXT.P7 : COPY OF ORDER DATED 08.03.2006 OF THE 1ST RESPONDENT.

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EXT.P8 : COPY OF REVISED BILL DATED 10.03.2006 ISSUED BY THE KSEB.

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EXT.P9 : COPY OF ORDER DATED 29.09.2005 ISSUED BY THE CHIEF ELECTRICAL INSPECTOR.

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EXT.P10 : COUNTER AFFIDAVIT FILED BY THE KSEB DATED 08.08.2005.

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EXT.P11

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: TRUE COPY OF THE ORDER PASSED BY THE ASSESSING AUTHORITY.

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EXT.P12 : TRUE COPY OF THE BILL SHOWING DEMAND OF THE PENAL INTEREST.

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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.8156 of 2006

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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 Standing Counsel 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

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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

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W.P.(C)No.8156/2006

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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

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Court, I set aside the order of the assessing authority as well as the

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appellate authority and remit the matter to the assessing officer to dispose of the same in accordance with the judgment referred above.

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W.P.(C)No.8156/2006 -:3:-

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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. The learned counsel for the petitioner submits that 50% of the demand has already been paid. Amount, if any, paid or deposited 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 20.3.2012. 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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Highway Garden Drive in(P)Ltd. v. Deputy Chief Engineer, Kseb

Case brief

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Highway Garden Drive in(P)Ltd. v. Deputy Chief Engineer, Kseb

Case brief

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