Remanded

Secretary,Indira Gnadhi Co-Operative v. K.S.E.B.

Kerala HC26 Aug 2016WP(C)/24796/2006

Case brief

AI extract

What is this about?

Two writ petitions challenging electricity board demands for unauthorized connected load were disposed of. The Court held that the Special Officer lacked jurisdiction under Section 126. Impugned orders were quashed to allow petitioners to approach the competent authority designated by the Act.

What did the court decide?

Impugned orders under Section 126 of the Kerala Electricity Act quashed to permit challenge before competent authority; demand reserved by Board to make afresh.

Secretary,Indira Gnadhi Co-Operative Vs K.S.E.B. — Banking and Recovery | 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 A.M.SHAFFIQUE

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FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938

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WP(C).No. 24796 of 2006 (B)

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PETITIONER(S):

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THE SECRETARY, INDIRA GANDHI CO-OPERATIVE HOSPITAL, P.B.NO.2019, KADAVANTHRA, GIRI NAGAR, COCHIN-20.

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BY ADV. SRI.S.RAMESH BABU

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RESPONDENT(S):

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1. THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.

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2. THE DEPUTY CHIEF ENGINEER (APTS), KERALA STATE ELECTRICITY BOARD, POWER HOUSE ROAD, ALUVA-683 101.

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3. THE SPECIAL OFFICER (REVENUE), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.

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BY ADVS. SRI.P.SANTHALINGAM (SR.) SRI.JOSE J.MATHEIKEL, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB SRI.S.SHARAN, SC, K.S.E.B.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-06-2016 ALONG WITH WPC. 15269/2008, THE COURT ON 26-08-2016, DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 24796 of 2006 (B)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1 TRUE COPY OF THE MAHAZAR DTD.6.4.2005.

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EXT.P2 TRUE COPY OF THE COVERING LETTER DTD.19.4.2005.

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EXT.P2(a) TRUE COPY OF THE COVERING LETTER DTD.18.4.2005.

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EXT.P3 TRUE COPY OF THE APPEAL DTD.29.4.2005.

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EXT.P4 TRUE COPY OF THE ORDER NO.APTS/BV/1040/05/EKM/09 DTD.12.6.2006.

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EXT.P5 TRUE COPY OF THE INVOICES FOR SEPTEMBER 2005 TO MARCH 2006.

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EXT.P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE TARIFF ORDER 2002.

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EXT.P7 TRUE COPY OF SRO NO.229/2005.

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EXT.P8 TRUE COPY OF THE JUDGMENT DTD.7.4.2014 IN WRIT PETITION (CIVIL) NO.19000/2010.

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RESPONDENT(S)' EXHIBITS:

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------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

A.M. SHAFFIQUE, J.

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W.P.(C).Nos.24796 of 2006 & 15269 of 2008 --------------------------------------------------------Dated this, the 26^th day of August, 2016

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J U D G M E N T

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As common issues arise for consideration in these two writ petitions, these are heard and disposed of together.

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W.P.(C).No.24796 of 2006 has been filed challenging Exts.P2, P2(a) and P4 and for a direction to the respondents, namely the Kerala State Electricity Board and its officials to reimburse all the amounts paid by the petitioner, which had been wrongly collected. Ext.P2 is a penal bill issued by the Board on 19.04.2005 calling upon the petitioner to remit an amount of 2,61,450/- on the₹ ground of unauthorised connected load of 83KVA for the period from October 2004 to March 2005. The penal bill had been issued by the Special officer (Revenue). Ext.P2(a) is a letter issued by the Special officer (Revenue) to the petitioner, wherein, it is stated that on a surprise inspection conducted on 06.04.2005 by the Anti Power Theft Squad (APTS) Wing it was detected that there is an unauthorized load of 83KVA. The sanctioned load of the petitioner was 100KVA and at the time of inspection it was noticed that the connected load was 183KVA. It is mentioned that the aforesaid action of the petitioner was in violation of the Clause 42(e) of the Conditions of Supply of Electrical Energy and therefore, penal charge was levied for a period of 6 months at 1.5 times of the actual

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W.P.(C).Nos.24796 of 2006 & 15269 of 2008 2

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charges. Petitioner submitted Ext.P3 appeal dated 05.04.2006 to the Deputy Chief Engineer challenging the aforesaid demand. The appeal was disposed of on 12.06.2006 as per Ext.P4, by which direction was issued to limit the unauthorised additional load to 67KVA. The Special Officer (Revenue) was directed to revise the penal bill accordingly. Ext.P5 is the bill issued pursuant to the same.

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Petitioner contended that being an HT consumer, there cannot be any question of estimating the connected load and therefore, the very principle on which the demand is made is baseless. During the pendency of the writ petition, the writ petition came to be amended by incorporating additional grounds. It is stated that under Section 126 of the Kerala Electricity Act, 2003 provisional assessment and final assessment has to be made by the Assistant Engineer and the Special Officer has no jurisdiction in the matter. Reference is made to the gazette notification dated 2^nd March, 2005. Further it is contended that the order passed is appealable under Section 127 and the authority who had decided the appeal have no jurisdiction in the matter.

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Statement is filed on behalf of respondents, wherein, it is stated that excess demand charges are collected for the demands exceeding the contract demand. It was found that the consumer was using energy to run equipments unauthorisedly connected to the sanctioned load. Further it is contended that the petitioner was charged only at 150% for the recorded KVA in excess over the

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W.P.(C).Nos.24796 of 2006 & 15269 of 2008

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contract demand and not for unauthorised additional load. Therefore, they support the stand taken in the matter.

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In W.P.(C).No. 15269 of 2008 also a some what similar issue had been raised. The petitioner in that case had a contract demand for 200KVA. Later he applied for additional power allocation for 70KVA. Necessary deposit was also made as demanded by the Board officials. However, as per proceedings dt.01.12.2005, the petitioner was called upon to remit 12,16,215/- as penal bill for₹ unauthorized additional load in terms of Ext.P10 and P10(a). Petitioner filed Ext.P11 challenging the same before the Special Officer. But the demand was confirmed as per Ext.P12. Petitioner has, therefore, approached this Court.

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Heard the learned counsel appearing on either side.

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There is no dispute about the fact that the demand for additional load has been made by the Board officials invoking power under Section 126 of the Electricity Act, 2003. This Court in

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Muhammed Haji v. Kerala State Electricity Board [2014 (3)

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KLT 706] held that person or persons appointed as appellate authority as contemplated under Section 127 of the Electricity Act, 2003 shall not be directly related to the territorial jurisdiction of the licensee or supplier of energy. Having come to such an opinion, this Court directed the Government to issue the following directions :

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“1. The Government of Kerala shall appoint the Appellate Authority as contemplated under Section 127 of the

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W.P.(C).Nos.24796 of 2006 & 15269 of 2008

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Electricity Act, 2003 and the Appeal to the Appellate Authority Rules, 2004. This shall be done as expeditiously as possible at any rate within six weeks from the date of receipt of a copy of this judgment.

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2. Once the Appellate Authority is so constituted, the appeals that are already filed by the writ petitioners and which are pending before the Deputy Chief Engineers, who were appointed by virtue of G.O.(P) No. 27/2012, shall be transferred to the Appellate Authority and the Appellate Authority shall consider and decide those appeals on merits.

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3. Such of the writ petitioners who have not filed appeals against the orders of assessment under S.126 of tthe Act, shall file appeals as provided under Section 127 of the Electricity Act within one month of constitution of the Appellate Authority as directed above and if such appeals are filed, the same shall be dealt with on merits and disposed of accordingly. “

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In the light of above pronouncement of law, it will be appropriate to look at the factual circumstances involved in these cases. In W.P.(C).No.24796/06 it is evident that the petitioner did not get the opportunity to challenge the validity of the bill before the competent authority. Further they have raised a contention that the Special Officer (Revenue) has no jurisdiction in the matter. In W.P.(C).No.15269 of 2008 the petitioner did not opt to challenge the same by filing appeal, but they have directly approached this Court. There is no dispute about the fact that the Assistant Engineer of the concerned circle has been designated as the competent officer. No material had been produced to show that the Special Officer

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W.P.(C).Nos.24796 of 2006 & 15269 of 2008 5

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(Revenue) can make an assessment in this regard, which apparently is without jurisdiction. Hence, the demand itself is not made in terms with Section 126 of the Electricity Act, 2003.

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As the matter stands now, I don't think it necessary to go into the facts of each case to verify whether the demand is justified or not. It would only be appropriate to permit the petitioners to take up the issue before the competent appellate authority to ventilate their grievances. In the result, these writ petitions are disposed of as under :

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The impugned orders in W.P.(C).No.24796/06 Ext.P2, P2(a) and P4 are quashed. However quashing of the aforesaid demand shall not preclude the competent officer designated under Section 126 of the Electricity Act in making a demand as provided under the statute.

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W.P.(C).No.15269/08 is allowed. Ext.P12 is set aside, however, reserving right of the respondent Board to make a demand in terms with the provisions of the statute by the competent officer.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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Secretary,Indira Gnadhi Co-Operative v. K.S.E.B.

Case brief

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Secretary,Indira Gnadhi Co-Operative v. K.S.E.B.

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