The Court held that electricity duty cannot be levied on penalty amounts. It directed credit for payments made and quashed a bill imposing further penalty without following statutory assessment procedures under Section 126.
Ext.P11 quashed; Ext.P10 modified to reduce electricity duty and credit prior payments; revised demand to be issued.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THURSDAY, THE 5TH DAY OF JUNE 2014/15TH JYAISHTA, 1936
WP(C).No. 6582 of 2009 (P)
PETITIONER(S):
E.MOHAMMED HAJI, S/O.AHAMMEDKUTTY, PARAMAL HOUSE, A.C.BAZAR, P.O.MOONNIYUR PIN-676 311, MALAPPURAM DISTRICT.
BY ADV. SRI.R.RAMADAS
RESPONDENT(S):
1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN THIRUVANANTHAPURAM.
2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, CHELARI, MALAPPURAM DISTRICT.
3. THE DEPUTY CHIEF ENGINEER, K.S.E.B, ELECTRICAL CIRCLE, TIRUR MALAPPURAM DISTRICT.
R1-3 BY ADVS. SRI.P.P.THAJUDEEN, SC, K.S.E.B SMT.P.K.RADHIKA-KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 6582 of 2009 (P)
APPENDIX
PETITIONERS' EXHIBITS
| EXT.P1 | COPY OF PROFESSIONAL BILL DATED:24.5.2008 ALONG WITH CALCULATION STATEMENT AND SITE MAHAZAR. |
|---|---|
| EXT.P2 | COPY OF JUDGMENT IN WP(C) 19084/08 DATED 25.6.2008 |
| EXT.P3 | COPY OF COMMUNICATION DATED 8.8.2008 ISSUED BY THE SUB ENGINEER TO THE PETITIONER. |
| EXT.P4 | COPY OF JUDGMENT IN WP(C) 27505/2008, DATED 16.9.2008 |
| EXT.P5 | COPY OF ORDER OF R2, DATED 18.10.2008 |
| EXT.P6 | COPY OF BILL DATED 18.10.2008 |
| EXT.P7 | COPY OF RECEIPT FOR PAYING RS.45865/- DATED 11/2008 |
| EXT.P8 | COPY OF ADDITIONAL OBJECTION BY THE PETITIONER DATED 13.1.2009 |
| EXT.P9 | COPY OF ORDER BY R3 DATED 30.1.2009 |
| EXT.P10 | COPY OF BILL DATED 11.2.2009 ALONG WITH CALCULATION STATEMENT TO REMIT RS.89003. |
| EXT.P11 | COPY OF BILL DATED 11.2.2009 TO REMIT RS.35,450/- |
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P. A. TO JUDGE
Pn
C.K. ABDUL REHIM, J.
W.P.(C). No. 6582 of 2009
Dated this the 5th day of June, 2014
JUDGMENT
Pursuant to an inspection conducted at the premises of the petitioner, where an electric connection is provided for running a Hotel, Ext.P1 provisional assessment of penalty under Section 126 was issued, based on the allegation that unauthorised additional load was detected. The petitioner filed objections against the provisional assessment, which was directed to be considered by the Assessing Officer, through a judgment of this court. Thereafter Ext.P3 final order was issued, which was again challenged before this court. In Ext.P4 judgment this court found that the Assessing Officer has not applied his mind with respect to the objections raised. Hence the final order of assessment was quashed and the Assessing Officer was again directed to pass fresh orders. Accordingly, Ext.P5 proceedings was issued finalising the assessment accompanied with Ext.P6 consequential bill. Exts.P6 and P7 were challenged in an appeal filed before
W.P.(C). No. 6582 of 2009
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the 3rd respondent, the appellate authority under Section 127 of Electricity Act, 2003. In Ext.P9 order the appellate authority had declined interference, but modified the quantum of unauthorised additional load from 4725 watts to 4420 watts. Ext.P10 is the consequential bill issued. The 2nd respondent had issued a further bill as per Ext.P11 imposing penal assessment for the subsequent period also. Exts.P9, P10 and P11 are under challenge in this writ petition.
W.P.(C). No. 6582 of 2009
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It remains settled by this time that no duty can be levied on the amount of penalty. Therefore demand for payment of electricity duty to the tune of `7,000/- contained in Ext.P10 is not sustainable.
W.P.(C). No. 6582 of 2009
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contained in Section 126. Section 126 prescribes procedure for assessment of penalty. Eventhough the respondents had a case that unauthorised additional load detected had continued under usage of the consumer, they have to resort to procedure contemplated under Section 126(2)&(3) for imposing any further penalty. Hence Ext.P11 is unsustainable.
the 2nd respondent will be at liberty to make fresh assessment following the procedure contemplated under
W.P.(C). No. 6582 of 2009
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Section 126, if he has got a case that there occurred continued unauthorised usage for any period after the imposition of Ext.P1 penalty, subject to sustainability of such assessment under the relevant provisions of the
statute.
C.K. ABDUL REHIM, JUDGE
Pn
3 issues framed by the court
Whether electricity duty can be levied on the amount of penalty assessed for unauthorised usage of electricity.
Whether credit should be given to payments already made by the petitioner towards the penal assessment.
Whether continued imposition of penalty without following the procedure under Section 126(2) and (3) is sustainable for the subsequent period.
3 provisions across 2 enactments
E. Mohammad Haji
Kerala State Electricity Board
The Assistant Engineer, Electrical Section, Chelari
The Deputy Chief Engineer, K.S.E.B
C.K. Abdul Rehim
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
