Dismissed

Prasad Hotels (P) Ltd. v. K.S.E.B.

Kerala HC1 Jul 2016WP(C)/3425/2008

Case brief

AI extract

What is this about?

This writ petition challenged a Board order rejecting a request to reduce penal bills for unauthorized load. The Single Judge held that the Board was justified in applying punitive rates to Low Tension consumers without physical verification of the load, distinguishing them from High Tension consumers and medical institutions.

What did the court decide?

The writ petition was dismissed, upholding the impugned order dated 17.1.2008 passing revised bills.

Prasad Hotels (P) Ltd. Vs K.S.E.B. — Service and Employment | 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 1ST DAY OF JULY 2016/10TH ASHADHA, 1938

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WP(C).No. 3425 of 2008 (G)

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PETITIONER(S):

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PRASAD HOTELS (P) LTD., PMG JUNCTION, TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR, P.SURENDRAN.

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BY ADVS.SRI.K.P.DANDAPANI (SR.)

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SRI.MILLU DANDAPANI

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RESPONDENT(S):

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1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN,, PATTOM PALACE P.O., TRIVANDRUM-695004.

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2. DEPUTY CHIEF ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, POWER HOUSE BUILDING, TRIVANDRUM.

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3. ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, CANTONMENT, TRIVANDRUM.

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4. CHIEF ELECTRICAL INSPECTOR, GOVERNMENT OF KERALA, HOUSING BOARD BUILDING, TRIVANDRUM.

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5. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF POWER, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.

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R1-R3 BY ADVS. SRI.P.SANTHALINGAM (SR.)

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SRI.S.SHARAN,SC,K.S.E.BOARD

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R4 & R5 BY GOVERNMENT PLEADER SRI.BOBBY JOHN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 3425 of 2008 (G)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 COPY OF JUDGMENT DTD.9.11.2005 OF DIVISION BENCH OF THIS HONOURABLE COURT IN WA.NO.538/2004.

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P2 COPY OF ORDER DTD.4.11.2006 ISSUED BY THE BOARD.

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P3 COPY OF PENAL BILL DTD.14.12.2006 ISSUED BY BOARD.

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P4 COPY OF PENAL BILL DTD.14.12.2006 ISSUED BY BOARD.

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P5 COPY OF REVISION PETITION DTD.24.1.2007 FILED BY PETITIONER

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P6 COPY OF ORDER DTD.21.2.2007 ISSUED BY BOARD.

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P7 COPY OF BILL DTD.21.2.2007 ISSUED BY BOARD.

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P8 COPY OF BILL DTD.21.2.2007 ISSUED BY BOARD.

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P9 COPY OF ORDER DTD.8.3.2007 OF THIS HONOURABLE COURT IN WP(C) NO.33904/2006 J.

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P10 COPY OF JUDGMENT DTD.29.3.2007 OF DIVISION BENCH OF THIS HONOURABLE COURT IN WA NO.814/2007 B

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P11 COPY OF RECEIPTS DTD.10.4.2007.

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P12 COPY OF APPLICATION DTD.7.4.2007 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT.

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P13 COPY OF APPLICATION DTD.11.4.2007 SUBMITTED BY PETITIONER

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P13(a)COPY OF APPLICATION DTD.11.4.2007 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT.

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P14 COPY OF JUDGMENT DTD.5.9.2007 OF THIS HONOURABLE COURT IN WP(C) NO.23251/2007 R.

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P15 COPY OF JUDGMENT DTD.5.9.2007 OF THIS HONOURABLE COURT IN WP(C) NO.23251/2007 R.

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P16 COPY OF ORDER BO (FB) 1292/2002/(PLG. COM. 4206/01) DTD.18.9.2002 ISSUED BY THE BOARD.

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P17 COPY OF ORDER DTD.17.1.2008 ISSUED BY BOARD.

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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) No.3425 of 2008

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===================

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Dated this, the 1^st day of July, 2016

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J U D G M E N T

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Petitioner challenges Ext.P17, an order passed by the Secretary of the Kerala State Electricity Board (hereinafter referred to as the Board) by which the representation submitted by the petitioner for waiving the payment of bills issued by the Board had been rejected.

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The short facts involved in the writ petition would disclose that the petitioner was having two power connections under the tariff LT VIIA, being Consumer Nos.2496 and 2497. The Anti Power Theft Squad (APTS) conducted an inspection in the premises of the petitioner on 31/3/2000. It was noticed in total there was an unauthorised additional load of 95 KW. Hence, penal bills were issued. Petitioner preferred an appeal which was rejected. Petitioner challenged the same by filing WP(C) No. 4498/2006. By judgment dated 17/2/2006, the writ petition was disposed of with a direction to reconsider the request of the petitioner for reduction of the penalty and the penalty was

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W.P(C) No.3425/08

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-:2:-

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reduced to two times the tariff instead of three times as demanded earlier. Petitioner again filed WP(C) No. 33904/2006. This Court by judgment dated 5/9/2007 directed the Secretary of the Board to reconsider the case with reference to the factual controversies projected by the petitioner. Pursuant to the judgment of this Court, petitioner submitted representation dated 24/9/2007, which ultimately resulted in Ext.P17 order.

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It is submitted by the learned counsel for the petitioner that during the aforesaid period, petitioner had remitted about 50% of the demand. It is contended that the petitioner is entitled for the benefit of Ext.P16 Board order dated 18/9/2002. Learned counsel refers to clause 2 of Ext.P16 Board order, which reads as under;

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“(ii) In the case of L.T. consumers other than domestic consumers, the penalty for unauthorised additional load shall be levied at the rate of twice the fixed charges per KW of additional load per month or part thereof till the said unauthorised additional load is removed or regularized as per rules.”

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It is argued that the charges could be levied at the rate

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of twice the fixed charges per KW of additional load per month or

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W.P(C) No.3425/08

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part thereof till the said unauthorised additional load is removed or regularised as per Rules. It is submitted that the petitioner, being a LT consumer, is entitled for the benefit of the said Board order dated 18/9/2002.

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Counter affidavit has been filed by respondents 1 to 4 wherein it is stated that in the case of Low Tension consumers such as the petitioner, additional unauthorised load cannot be measured without physical verification. Therefore in respect of such consumers, the charges for unrealised load remains unrealised till the said load is detected and measured in physical form. It is therefore contended that the Secretary was justified in passing the impugned order. Learned counsel for the petitioner further made a reference to the Board order dated 8/11/2006 by which referring to Ext.P16, certain concessions had been extended to M/s.Malabar Institute of Medical Sciences (MIMS) Limited.

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Learned counsel appearing for the respondent Board however would say that MIMS was granted the concession since it was a High Tension Consumer which cannot be applied to Low Tension consumers.

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W.P(C) No.3425/08

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The question to be considered in the present writ petition is whether there is any illegality or perversity in the order passed by the Secretary. The Secretary, after hearing the parties, has in Ext.P17, arrived at the following finding:

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“In the argument note submitted by the petitioner, he has requested to reconsider the bills issued to him since there is no theft or wilful act of abstraction of energy. He has also pointed out that as per Government Notification and B.O (FB) No.1292/2002 (Plg.Com.4206/2001) dated 18.9.2002, the penalty for unauthorized additional load shall be levied at the rate of twice the fixed charge per KW of additional load per month or part thereof till the said unauthorized additional load is removed or regularized as per rules.

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The Board has examined the case in detail. It is seen that the case pointed out by the petitioner i.e., the case of M/s. MIMS, who is a High Tension (HT) Consumer cannot be considered as a similar case. Moreover, the inspection of APTS in the instant case was conducted on 31.3.2000 which is prior to the issuance of B.O (FB) No.1292/2002 (Plg.Com.4206/2001) dated 18.9.2002 in which imposition of penalty is limited to fixed charges only. In the case of HT/EHT consumers, the effect of connected load in a premises would be measured by the Maximum Demand meter if the additional loads are put into use. In such cases, the Board would get

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W.P(C) No.3425/08

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the charges of the exceeded contract demand at 1.50% of the normal rate even if the same remains unauthorised. It is in addition to the charges for the energy consumed.

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But in the case a Low Tension (LT) consumer like the petitioner, the addition of unauthorized load and its effect cannot be measured without physical verification. As such the case of an LT consumer, the charges for the additional load remains unrealized till the said load is detected and measured in physical terms.

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In addition to this the electricity supplied to MIMS is used for running a hospital whereas the supply to M/s.Prasath Hotel is used for running a Bar Hotel. The two purposes cannot be weighed with the same scale.

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In the circumstance, the petitioner consumer deserves no further concession. For the unauthorized action detected on the part of petitioner consumer, he is liable to pay charges as demanded as per bill dated 21.2.2007. The petition is disposed of accordingly.”

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The respondent Board had already highlighted the fact that as far as LT Consumer is concerned, the additional unauthorised load and its effect cannot be measured without physical verification. It is in the said circumstances that it is found that the demand was justified. Exts.P7 and P8 are the modified bills issued which would

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W.P(C) No.3425/08

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show the amounts due and the manner in which it has been calculated. In so far as there cannot be any dispute regarding the fact that there was unauthorised load, the question was only with reference to the benefit to be granted pursuant to the Board order dated 18/9/2002.

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In the judgment in WA No.1231/2003 and connected cases, Division Bench of this Court had directed the Board to reconsider the claim of the petitioners therein based on the notification dated 18/9/2002. The said judgment was delivered on 9/11/2005 pursuant to which three times penalty has been reduced to twice the penalty. Again, the petitioner challenged the same by claiming other benefits. In fact, when already the contentions urged by the petitioner had been considered and direction had been issued by the Division Bench of this Court to consider the claim and still further as per directions in judgment in WP(C) No. 33904/2006, the matter was again reconsidered, this Court will not be justified in interfering with Ext.P17 order. The Secretary had considered the issues based on the circular itself and the eligible deductions had already been granted to the petitioner. Petitioner apparently was successful in delaying

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W.P(C) No.3425/08

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payment of the amount by this litigation.

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There is no illegality or irregularity in the manner in which the demand had been made and Ext.P17 does not suffer from any infirmity warranting interference by this Court in this writ petition.

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Writ petition is, hence, dismissed.

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Sd/- A.M. SHAFFIQUE, JUDGE

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Rp1/07/2016

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//True Copy//

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P.S to Judge

Prasad Hotels (P) Ltd. v. K.S.E.B.

Case brief

What is this about?

What did the court decide?

Prasad Hotels (P) Ltd. v. K.S.E.B.

Case brief

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