Remanded

M/S. Sri Lakshmi Electrosmelters (P) Ltd. v. Kerala State Electricity Board Limited

Kerala HC25 Jul 2016WA/1296/2016

Case brief

AI extract

What is this about?

Appeal against conviction for electricity theft and penalty. This Court set aside the Chairman's lack of reasoned order on appellant's submissions. Matter remanded to Secretary KSEB to reconsider after hearing, within six weeks. Tariff calculation challenge directed to Consumer Forum.

What did the court decide?

Ext. P12 order set aside. Secretary KSEB directed to consider matter afresh after personal hearing within six weeks.

M/S. Sri Lakshmi Electrosmelters (P) Ltd. Vs… — Contract and Commercial Disputes | Kerala HC (2016)

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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 P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938

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APPELLANT(S):

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M/S. SRI LAKSHMI ELECTROSMELTERS (P) LTD. 182, INDUSTRIAL DEVELOPMENT AREA, ERUMATHALA P.O., ALUVA, HAVING ITS ADMINISTRATIVE OFFICE AT 4, CO-OPERATIVE COLONY, UPPILPALAYAM, COIMBATORE-641015, REPRESENTED BY ITS DIRECTOR, RENJITH CHANDRA VENKITTAPATHY. BY ADVS.SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN

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RESPONDENT(S)/RESPONDENTS:

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KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.

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CHAIRMAN, KERALA STATE ELECTRICITY BOARD LIMITED, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.

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DEPUTY CHIEF ENGINEER APTS, KERALA STATE ELECTRICITY BOARD LIMITED, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.

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SPECIAL OFFICER (REVENUE), KERALA STATE ELECTRICITY BOARD LIMITED, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004. 5. ASSISTANT EXECUTIVE ENGINEER, A P T S, KERALA STATE ELECTRICITY BOARD LIMITED, KOTTAYAM-12. R1-5 BY ADV. SRI.T.R.RAJAN SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.R. RAMACHANDRA MENON

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ANIL K. NARENDRAN, JJ.

JUDGMENT

Anil K. Narendran, J.

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This appeal arises out of the judgment of the learned Single Judge dated 06.06.2016 in W.P.(C) No. 19313 of 2016. The appellant, a company registered under the Companies Act, was a High Tension consumer of electricity under the 4^th respondent with consumer No. 31/3312 with a contract demand of 1975 KVA. The industrial unit run by the appellant was engaged in production of ferro alloys. On 09.12.2004, Anti Power Theft Squad (APTS) headed by the 5^th respondent inspected the premises and based on the inspection so conducted, the appellant was issued with Ext. P1 mahazar, alleging tampering of the meter installed in the premises, resulting misuse of electrical energy. On receipt of Ext. P1, the appellant submitted Ext. P2 representation dated 21.12.2004 before the second respondent. Based on Ext. P1 mahazar, the appellant was issued with Ext. P3 demand for a sum of Rs.4,14,98,711/- towards energy charges and penal charges. Aggrieved by demand made in

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Ext. P3, the appellant submitted Ext.P4 appeal before the 3^rd respondent who is the appellate authority. Subsequent to filing of the said appeal, the appellant approached this Court in W.P.(C) No. 3908 of 2005, which was disposed of by Ext. P5 judgment, by which, the appellate authority was directed to consider the request of the appellant for examination of the meter by the Electrical Inspector.

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Pursuant to the direction contained in Ext. P5 judgment, the appellate authority considered the said request and the electric meter was sent for examination by the Electrical Inspector, who submitted Ext. P6 report. The comments and remarks of the Electrical Inspector in Ext. P6 report read as thus;

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“1. Some scratches are seen on the name plate fixed above the counters of the kwh and kvarh meters. It cannot be ascertained whether this has been made with some weapons or tools for tampering the reading.

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It cannot be ascertained whether such tampering were done on the counter digits of the meter. But the positions of the counter digits can be adjusted, if the meter cover is opened.

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The seals on the four sides of the meter differs from the TMR seals produced in this office along with the meter.

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By testing and calibration of the meter in this lab, it could not be ascertained whether any tampering has been done on the meter. But tampering can be done, if the meter cover is opened.”

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Based on the report submitted by the Electrical Inspector and after considering the arguments of the appellant, the appellate authority passed Ext. P7 order dated 13.05.2005. By aforesaid order, though the appellate authority found that the finding in Ext. P1 mahazar regarding theft of electrical energy is sustainable, the assessing authority was directed to issue a fresh demand based on the findings contained in Ext. P7 order. The operative portion of Ext. P7 reads as follows :

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“7. In view of the above observations, it is hereby ordered as follows:

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(i) 'Theft of Electricity' by tampering the energy meter and MD meter had occurred in the appellant consumer installation. This need to be penalized for the 6 months period prior to the date of inspection at 1.5 times penal rate as per Section 126 of Electricity Act, 2003. The penal bill issued need to be revised accordingly.

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(ii) Special Officer (Revenue), KSEB is directed to revise the penal bill issued as ordered above and the revised bill with details and balance amount due, taking into consideration amount already remitted if any, be issued to the consumer immediately. The appellant consumer should remit such amount due in 15 days time. The power supply to the consumer can be restored on remittance of the amount due.”

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Based on the order passed by the appellate authority, the

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assessing authority made a revised demand vide Ext. P8 demanding a sum of Rs.2,24,67,626/-.

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The order passed by the appellate authority and revised demand made by the assessing authority were under challenge before this Court in W.P.(C) No. 24222 of 2005. By Ext. P9 judgment, this Court disposed of the said Writ Petition, directing disposal of Ext. P2 representation dated 21.12.2004 preferred by the appellant within two months from the date of receipt of a copy of that judgment, after affording an opportunity of personal hearing. Pursuant to the said direction in Ext.P9 judgment, a hearing was conducted by the 2^nd respondent, the Chairman of the KSEB and the appellant submitted Ext. P10 argument notes. After considering the rival contentions, the said authority passed Ext. P12 order dated 27.02.2013; the operative portion of which reads as follows :

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“6. The Ext P2 representation has been examined in detail on its merits in the light of the contentions raised in the argument note along with the material documents especially the site mahazar. Based on the site mahazar prepared during the site inspection, a finding was made that the petitioner committed theft of energy. The Deputy Chief Engineer, APTS who is the appellate authority had also concurrently found that the petitioner had committed theft of power by tampering with the meter. Theft of power, misuse of

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power and unauthorized use of power etc are very serious issues being faced by the licensees. If the consumer resorts to this kind of unhealthy practices, the entire system may collapse which is detrimental to the financial interest of the Board and also a threat to human life. With a view of curb such unhealthy practices, the legislature has enacted different punitive measures like imprisonment, fine and realization of civil liability @ 2 times for the entire period of malpractice.”

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Subsequent to Ext.P12, the appellant has been issued with Ext.P13, communication dated 12.5.2016 of the 1^st respondent raising demand in terms of Ext.P12 order passed by the 2^nd respondent and also the demand based on the claim for pre-92 tariff. Aggrieved by Ext. P12 order passed by the 2^nd respondent, the Chairman of KSEB and Ext.P13 communication issued by the 1^st respondent, the appellant has approached this Court by filing W.P.(C) No. 19313 of 2016. The learned single Judge, after considering the rival contentions, upheld Exts.P12and P13, which is under challenge in this appeal.

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We heard the arguments of the learned counsel for the appellant and also the learned Standing Counsel for the KSEB, representing the respondents.

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During the course of arguments, the learned counsel for the

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appellant raised a specific contention that, though Ext. P12 order is stated to have been passed as early as on 27.02.2013; a copy of which was not served upon the appellant and the appellant came to know about the same only when a hearing was conducted by the 2^nd respondent Chairman in connection with its claim for pre 92 tariff.

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In view of the specific contention raised by the appellant, the learned Standing Counsel for the KSEB has filed I.A. No. 372/2016 producing therewith, the relevant extract of the despatch register as Ext. R1(a). Though as seen from Ext. R1(a), a copy of Ext. P12 order is seen despatched to the appellant by ordinary post, that by itself will not prove that the said order was duly communicated to the appellant.

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As far as the challenge against the calculation made in Ext.P13 while granting the benefit of pre-92 tariff is concerned, if the appellant has a grievance that the demand made in this regard in Ext.P13 is not in accordance with the directions issued by the Apex Court, it is for the appellant to agitate the said issue by filing an appropriate petition before the Consumer Grievance Redressal Forum. In view of the statutory remedy available to the appellant, such an issue cannot be raised before this Court, invoking the discretionary jurisdiction under Article 226 of the Constitution of India. Therefore,

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if the appellant is aggrieved by the calculation made while granting the benefit of pre-92 tariff, it is for the appellant to invoke the statutory remedy within a period of two weeks from the date of receipt of a certified copy of this judgment.

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Regarding Ext.P12 order passed by the 2^nd respondent, the grievance of the appellant is that in spite of the specific direction contained in Ext.P9 judgment of this Court in W.P.(C).No.24222 of 2005, the 2^nd respondent has issued the said order without properly appreciating the specific contentions raised in Ext.P2 representation and Ext.P10 written submission dated 19.12.2012. A reading of Ext.P12 order would show that the 2^nd respondent declined interference mainly in view of the concurrent findings made by the original authority as well as the appellate authority. The only reasoning in Ext.P12 is that in view of the concurrent finding made by the original authority as well as the appellate authority, the 2^nd respondent find no reasons whatsoever to interfere with the said orders and therefore the appellant is liable to pay the amount as per the revised assessment made by the 4^th respondent.

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When the 2^nd respondent is directed to consider Ext.P2 representation submitted by the appellant, by Ext.P9 judgment of this

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Court, the said respondent is duty bound to consider the same and take an appropriate decision after affording the appellant a reasonable opportunity of being heard. The 2^nd respondent is also duty bound to pass a reasoned order meeting the arguments advanced on behalf of the appellant. However, as discernible Ext.P12, the 2^nd respondent has not undertaken such an exercise while passing Ext.P12 order. The various contentions raised by the appellant in Ext. P10 argument notes were not properly dealt with by the 2^nd respondent while passing the said order. In that view of the matter, we deem it appropriate to set aside Ext. P12 order passed by the 2^nd respondent so as to enable reconsideration of entire issue raised by the appellant.

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During the course of arguments it was pointed out by the learned Standing Counsel for the KSEB that the matter may be caused to be reconsidered by the Secretary of Board, instead of the 2^nd respondent. In view of the said submission made by the learned Standing Counsel for the KSEB, this writ appeal is disposed of, directing the Secretary KSEB to consider the matter, after giving a reasonable opportunity to the appellant to substantiate its contentions. The proceedings in this regard shall be completed at the earliest, at any rate, within six weeks from the date of receipt of a

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certified copy of this judgment.

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We make it clear that we have not expressed anything on the merits of the contentions raised by both the sides and it is for the Secretary of the Board to take an appropriate decision, strictly in accordance with law.

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sd/-

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P. R. RAMACHANDRA MENON, JUDGE

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sd/-

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ANIL K. NARENDRAN, JUDGE

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kmd

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/True copy/

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P.A. to Judge

M/S. Sri Lakshmi Electrosmelters (P) Ltd. v. Kerala State Electricity Board Limited

Case brief

What is this about?

What did the court decide?

M/S. Sri Lakshmi Electrosmelters (P) Ltd. v. Kerala State Electricity Board Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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