Dismissed

Sonia Exports v. the Kerala State Electricity Appellate Authority

Kerala HC6 Jul 2018WA/930/2018

Case brief

AI extract

What is this about?

Writ appeal against Single Judge order refusing to grant benefit of Sulabha marketing case. Court held if unauthorized load requires transformer upgradation, full energy charges are payable. Appeal dismissed; recovery and disconnection upheld.

What did the court decide?

Writ appeal dismissed; Board entitled to proceed for recovery and effect disconnection if demand not settled.

Sonia Exports Vs the Kerala State Electricity Appellate… — Banking and Recovery | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940

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WA.No. 930 of 2018 IN WPC. 156/2018

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AGAINST THE ORDER/JUDGMENT IN WP(C) 156/2018 of HIGH COURT OF KERALA DATED 13.3.2018

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APPELLANT(S)/WRIT PETITIONER

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SONIA EXPORTS VII/123,124,WARD-IX, AROOR PANCHAYATH, CHANDIROOR, PIN-688537, ALAPPUZHA, REPRESENTED BY IT'S PROPRIETOR, K.K.ABDUL NAZAR, S/O. KUTTY MOOSA, PEARL GARDENS, CHANDIROOR PO., ALAPPUZHA.

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BY ADVS.SRI.V.MAHENDRANATH SRI.R.SYLESHWAREN NAIR SMT.M.VISHNUPRIYA

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RESPONDENT(S)/RESPONDENT:

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1. THE KERALA STATE ELECTRICITY APPELLATE AUTHORITY ERNAKULAM, VYTTILA-682019.

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2. KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY IT'S CHAIRMAN, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN-695004.

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3. THE ASST. ENGINEER, K.S.E.B. LTD., ELECTRICAL SECTION, AROOR, ALAPPUZHA DIST-688001.

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BY SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BOARD LIMITED

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jg-11/7

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K.VINOD CHANDRAN & ASHOK MENON, JJ.

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W.A.No 930 of 2018

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------------------------------------------Dated this the 6^th day of July, 2018

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J U D G M E N T

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Vinod Chandran, J.

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The appellant/petitioner is before this Court challenging the judgment of the learned Single Judge refusing to grant the benefit as available in ILR 2017 (2) Kerala 609 [Sulabha Marketing (P) Ltd. v. Kerala State Electricity Board and Others] . The appellant, who is engaged in the business of processing marine products, was a consumer of the Kerala State Electricity Board under the High Tension (HT) category with a sanctioned load of 232.113 KW. On an inspection by the Anti Power Theft Squad of the Board on 18.6.2013, unauthorised additional load (UAL for short) of 170.587 KW was detected. A provisional assessment was made in the year 2013 itself and after calling for objections, the same was made absolute.

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The final assessment made under Section 126 of

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the Electricity Act, 2003 was not challenged in appeal for reason projected of the appellate authority constituted having been dissolved. The petitioner filed a writ petition as W.P.(c) 27564 of 2014 which was

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WA 930/2018

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disposed of by Ext.R3(a) judgment dated 23.10.2014. On the submission of the State that an appellate authority will be constituted immediately, the petitioner was directed to file an appeal within one month and on satisfaction of 50% of the demand the recovery was directed to be kept in abeyance. There was also a statutory stipulation of pre-deposit for maintaining an appeal, which was the reason for the order keeping the recovery in abeyance. The petitioner did not comply with the same and again approached this Court with an I.A in the disposed of matter seeking enlargement of time which was granted as per Ext.R3(b) order dated 26.11.2014. This order was also not complied with.

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After three years, yet another Writ Petition was filed admitting the liability and seeking installments which was allowed by Ext.R3(c) judgment dated 07.04.2017. The petitioner undertook to pay the entire amounts, and in that circumstances, an amount of Rs.4 lakhs was directed to be paid within a week, as undertaken and the balance in six equal monthly installments. Twice extension was sought which orders were also not complied with. The petitioner then, belatedly remitted 50% of the total demand, and filed

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WA 930/2018

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an appeal, with gross delay, in the year 2017. The same was considered and Ext.P1 order was passed, which was challenged before the learned Single Judge.

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The learned Standing Counsel for the Board submits that there is no bonafides in the appeal filed by the petitioner nor is there any merits. The petitioner having first agreed to file an appeal, then admitted the liability. Installments granted were not complied with and later 50% was remitted and a grossly delayed appeal was filed. There is clear abuse of process of law and on merits the directions in the cited decision are not applicable to the case as has been found by the appellate authority; argues the Standing Counsel.

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The learned Single Judge refused to interfere with the order, finding that the facts as seen from the order indicate no violation of the directions in Sulabha Marketing (P) Ltd. (supra). The direction in Sulabha Marketing (P) Ltd. (supra) relevant for this case is extracted herein below:-

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“(vi) However, in the case of a consumer, who is blamed with overdrawal of electricity in excess of sanctioned/connected load in the very same premises and for the very same purpose,

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WA 930/2018

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which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under Section 126(6) of the Act can only be equal to twice the fixed charges payable and such consumer cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of services, unless regularisation of such additional connected load or enhancement of contract demand necessitates upgradation of the existing distribution system or enhancement of voltage level of supply.”

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As noticed by the learned Single Judge, when the allegation is of mere over drawing electricity in excess of sanctioned or connected load, in the very same premises and for the very purpose for which supply is granted, there could be a demand for only twice the fixed charges and not twice the electricity charges, which already has been paid as metered by the Board. However, this would not apply in circumstances, when the regularisation of additional connected load or enhancement of contract demand necessitated upgradation of the existing distribution system or enhancement of voltage level of supply. The first appellate authority's order specifically indicates that with the UAL of 170.587 KW, the total load used by the

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WA 930/2018

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petitioner rose up to 402.7 KW. This necessitated installation of a transformer with a capacity of 400 KVA. The CT-PT (Current Transformer - Potential Transformer) unit also had to be enhanced for reason of the regularisation of the UAL. On such factual findings, the first appeal was rejected and the learned Single Judge refused to interfere with the same. It cannot be disputed that for increase of connected load the consumer had to get the sanction of the Board. This is granted only after verifying the peak-hour and normal load required for the locality, failing which there would be frequent disruption of power for reason of the existing equipment not being able to bear that extra load.

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The learned counsel for the petitioner alleges that the installation of the transformer and upgradation of the CTPT unit were never informed to the petitioner. When additional load is applied for and permitted, there is no requirement for the Board to inform the consumer about the installation of the transformer and upgradation of the CTPT unit, unless the charges are to be reimbursed. The appeal was from the demand raised by the Board based on the inspection

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WA 930/2018

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conducted at the manufacturing unit of the appellant. The contention of the Board was placed before the appellate authority and the findings on facts are not capable of being interfered with in a judicial review under Article 226 of the Constitution of India. We also see that the petitioner has been indulging in forum shopping and thus has delayed the realisation of the demand. The appeal filed was grossly delayed, but we would not express anything on that since the same was considered by the authority constituted. All the same, we do not think there is any reason to interfere with the judgment of the learned Single Judge. The Writ Appeal fails and the same is accordingly dismissed. The Board would be entitled to proceed for recovery and if the appellant does not settle the demand; forthwith effect disconnection. No costs.

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Sd/K.VINOD CHANDRAN JUDGE

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Sonia Exports v. the Kerala State Electricity Appellate Authority

Case brief

What is this about?

What did the court decide?

Sonia Exports v. the Kerala State Electricity Appellate Authority

Case brief

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