Disposed

M/S.Wave Online Infoway (Private) Limited v. Kerala State Elecrticity Board

Kerala HC2 Jun 2014WP(C)/22781/2013

Case brief

AI extract

What is this about?

The High Court directed the 4th respondent to reconsider the penalty calculation based on correct registered connected load of 28KW versus previously assessed 25KW. Petitioner was exonered from surcharge/interest if balance dues exist.

What did the court decide?

Petitioner directed to reconsider penalty revision on basis of 28KW load and consider application for additional power allocation within one month.

M/S.Wave Online Infoway (Private) Limited Vs Kerala… — Company and Corporate | Kerala HC (2014)

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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 C.K.ABDUL REHIM

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MONDAY, THE 2ND DAY OF JUNE 2014/12TH JYAISHTA, 1936

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WP(C).No. 22781 of 2013 (W)

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PETITIONER(S):

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M/S.WAVE ONLINE INFOWAY (PRIVATE) LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR ANOOP.S.R. PREETHI BUILDINGS, VYTTILA P.O., KOCHI-682019 (RESIDING AT 37/528, KOIPURAM, MUTTATHIL LANE, KADAVANTHRA, KOCHI-20 ERNAKULAM DISTRICT.

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BY ADV. SRI.V.S.AFSAL KHAN

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RESPONDENT(S):

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1. KERALA STATE ELECRTICITY BOARD REPRESENTED BY THE SECRETARY, VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM 695 001.

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2. DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, PERUMBAVUR ERNAKULAM-683542.

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3. THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION VYTTILA, KOCHI-682019.

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4. THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION VYTTILA, KOCHI-682019.

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

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 22781 of 2013 (W)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1:	A TRUE COPY OF	THE MAHAZAR DATED 22.4.2013.
EXHIBIT-P2:	COPY OF THE LE 4TH RESPONDENT	TTER DATED 23.4.2013 ISSUED BY THE .
EXHIBIT-P3:	A TRUE COPY OF THE PETITIONER	THE OBJECTION DATED 29.4.2013 FILED BEFORE THE 4TH RESPONDENT.
EXHIBIT-P4:	A TRUE COPY OF	THE RECEIPTS OF THE REMITTANCE.
EXHIBIT-P5:	A TRUE COPY OF NO.REVENUE/PRO RESPONDENT.	THE PROCEEDINGS CEEDINGS/12/DT.18.5.2013 OF THE 4TH
EXHIBIT-P6:	A TRUE COPY OF ALLOCATION/201 RESPONDENT.	THE LETTER NO.DB/POWER 3/1/1-6-2013 ISSUED BY THE 4TH
EXHIBIT-P7:	A TRUE COPY OF NO.12890/2009E COURT.	THE JUDGMENT IN W.P.(C) DATED 13.7.09 OF THIS HONOURABLE
EXHIBIT-P8:	A TRUE COPY OF IN CONSUMER NO	THE ELECTRICITY BILL NO.BILL#491728 .11532 DATED 4.6.2013.
EXHIBIT-P9:	A TRUE COPY OF NO.11532 DATED	BILL NO.BILL#355069 IN CONSUMER 7.5.2012.
EXHIBIT-P9A:	A TRUE COPY OF NO.11532 DATED	BILL NO.BILL#431953 IN CONSUMER 6.12.2012.
EXHIBIT-P9B:	A TRUE COPY OF NO.11532 DATED	BILL NO.BILL#441307 IN CONSUMER 7.1.2013.
EXHIBIT-P9C:	A TRUE COPY OF NO.11532 DATED	BILL NO.BILL#462811 IN CONSUMER 5.3.2013.
EXHIBIT-P9D:	A TRUE COPY OF NO.11532 DATED	BILL NO. BILL482049 IN CONSUMER 3.5.2013.
EXHIBIT-P10:	A TRUE COPY OF NO.15559/2013	THE JUDGMENT DATED 19.6.2013 W.P.(C) OF THIS HONOURABLE COURT.
EXHIBIT-P11:	A TRUE COPY OF THE PETITIONER	THE LETTER DATED 1.7.2013 FILED BY .
EXHIBIT-P12:	A TRUE COPY OF	THE RECEIPT DATED 12.7.2013.

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WP(C).No. 22781 of 2013 (W)

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EXHIBIT-P13:	A TRUE COPY OF THE ORDER NO.GB/AP-ES VYTTILA/2013- 14/910 DATED 31.7.13 OF THE 2ND RESPONDENT.
EXHIBIT-P14:	A TRUE COPY REVISED PENAL ORDER NO.B.B./VYTILLA/INSPECTION/2013-14/17.08.13 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P-15:	A TRUE COPY OF THE BILL DATED 1.6.2013 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P-16	COPY OF THE LETTER NO./BB/GL/07-08/DATED 18.6.2007 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER

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RESPONDENT(S)' EXHIBITS : NIL -----------------------

/TRUE COPY/

P. A. TO JUDGE

C.K. ABDUL REHIM, J.

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W.P.(C). No. 22781 of 2013

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Dated this the 2^nd day of June, 2014

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JUDGMENT

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Penalty under Section 126 of Electricity Act 2003 was imposed against the petitioner, pursuant to an inspection conducted on 22.04.2013, alleging usage of unauthorised additional load. The petitioner objected the provisional assessment by submitting Ext.P3. But final order of assessment was issued as per Ext.P5, allowing only a slight modification with respect to the period of assessment. Ext.P8 is the consequential demand issued. When the petitioner approached this court in an earlier writ petition challenging Exts.P5, he was relegated to the appellate remedy provided under Section 127. In Ext.P10 judgment the statutory appellate authority was directed to consider the appeal and to dispose of the same, subject to condition of the petitioner depositing 50% of the amount in accordance with the prerequisite condition stipulated under Section 127(2). Subsequently the appeal was disposed of through Ext.P13 directing revision in the

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W.P.(C). No. 22781 of 2013 -2-

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computation of penalty. Exts.P14 and P15 are the subsequential demands issued based on the appellate order. It is not being satisfied with the appellate order, the petitioner is approaching this court, challenging Exts.P13, P14 and P15.

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Contention of the petitioner is that the extent of unauthorised additional load calculated is not true and correct. It is contended that the authorised connected load of the petitioner was 28KW, whereas the authority had presumed the same only as 25KW. Further contention is that, an application submitted by the petition seeking enhancement of the connected load, was pending before the authorities. There occurred delay and latches on the part of the respondents in not sanctioning the additional load. Hence the penalisation based on the allegation of unauthorised additional load, is not justified, is the contention.

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Imposition of penalty on detection of unauthorised additional load cannot be held as illegal or unjustifiable on the basis that application of the consumer seeking sanction of additional power allocation was

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W.P.(C). No. 22781 of 2013

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pending. Even assuming that there occurred latches or delay on the part of the respondents in processing such application and in sanctioning the additional power load, the consumer was not authorised to indulge in usage of any additional load without obtaining proper sanction. Hence the penalisation cannot be challenged on that count.

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There exists a dispute with respect to the authorised connected load. During the inspection the authorities found that the total connected load installed at the premises is 35KW. The authorities proceeded on the basis that the unauthorised additional load is to the extent of 10KW. This was on the basis that the authorised connected load is taken as 24.80 KW (25KW). But contention of the petitioner is that the authorised connected load was 28KW. In this regard it is pointed out that there was an earlier inspection in the year 2009 and usage of excess load was detected. But it was later found that the actual load connected was only 24.80 KW and there was no unauthorised additional load. The petitioner had produced Ext.P16 notice issued by the 4^th respondent

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W.P.(C). No. 22781 of 2013

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pursuant to the said inspection, wherein it is indicated that the registered load is 28KW. But in Ext.P5 order of final assessment the registered connected load was considered only as 24.801KW. As per Ext.P14 the penalty was assessed for the additional 7KW for a period of 11 months and for the balance additional load of 10KW for a period of one month. The computation is made on the basis that the registered load is 25KW. If the registered connected load is actually 28KW, this has to be reduced as 4 KW for 11 months and 7 KW for one month respectively. The registered load of the consumer need to be ascertained on the basis of the records pertaining to the power allocation. Hence this court is of the opinion that the above aspect need to be reconsidered by the 4^th respondent and a revised bill need to be issued, if it is found that the registered load is 28KW.

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It is noticed that the petitioner had remitted 50% of the amount at the time when the appeal was filed. This court had issued an interim order on 11.09.2013 subject to condition of payment of a further sum of `15,000/-. Considering such circumstances, in the interest

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W.P.(C). No. 22781 of 2013

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of justice it is only justifiable to exonerate the petitioner from the liability for payment of any surcharge/interest, if any balance amount is found due for payment, as per the revised calculation.

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Another issue raised is regarding sanctioning of the additional connected load applied for by the petitioner. Learned counsel for the petitioner contended that the additional power requested is not provided on the basis that the petitioner has to install a Transformer at his expense. But it is pointed out that at present the total connected load required in the building in question will not exceed the limit prescribed under the relevant regulation. It is for the respondent concerned to consider such aspects and to take an appropriate decision.

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Therefore this writ petition is disposed of by directing the 4^th respondent to reconsider revision of penalty on the basis of the contention that the registered connected load of the petitioner is 28 KW. A decision shall be taken by the 4^th respondent in this regard, after affording opportunity of personal hearing to the petitioner, at the earliest possible, at any rate within a period of one

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W.P.(C). No. 22781 of 2013

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month from the date of receipt of a copy of this judgment.

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Needless to observe that, collection of balance amount if any or refund of excess payment if any will depend upon the outcome of such decision. As observed above, no penal interest/surcharge shall be leveled if it is found that the petitioner is liable to pay any balance amount.

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The 4^th respondent is also directed to consider the application for additional power allocation submitted by the petitioner and to take appropriate decision within the above said time limit of one month, after considering contentions of the petitioner that the total connected load in the building in question will not exceed the limit for which the consumer can be compelled to install Transformer at his own cost.

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Sd/-

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C.K. ABDUL REHIM, JUDGE

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M/S.Wave Online Infoway (Private) Limited v. Kerala State Elecrticity Board

Case brief

What is this about?

What did the court decide?

M/S.Wave Online Infoway (Private) Limited v. Kerala State Elecrticity Board

Case brief

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