Dismissed

The Assistant Engineer v. Krishna Kumar

Kerala HC3 Feb 2020WP(C)/2749/2020

Case brief

AI extract

What is this about?

This writ petition challenged an order of the Appellate Authority that set aside an electricity assessment of Rs 56237 passing the burden to the petitioner. The Court, relying on Sulabha (supra), held that since the overdrawal was in the same premises for the same purpose without system upgradation, assessment at twice the fixed charge rate was justified. The petition was dismissed.

What did the court decide?

Writ petition dismissed. Petitioner bound by Sulabha ruling; liberty to recover dues if Supreme Court overrules Sulabha.

The Assistant Engineer Vs Krishna Kumar — Writ and Judicial Review | Kerala HC (2020)

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

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WP(C).No.2749 OF 2020(P)

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PETITIONER:

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THE ASSISTANT ENGINEER ELECTRICAL SECTION, KSEB LTD, ULLOOR, THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.K.JANARDHANA SHENOY

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RESPONDENTS:

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1 KRISHNA KUMAR POWER ATTORNEY OF SRI.LEFROY JACOB, M/S.NIKUNJAM CONSTRUCTIONS PVT.LTD, INDRAPRASTHAM,TC-4 12554(3),PATTOM-KOWDIAR ROAD,THIRUVANANTHAPURAM-695004.

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2 KERALA STATE ELECTRICAL APPELLATE AUTHORITY, C C 51/52,NEAR 110 KV SUB STATION, VYTTILLA,COCHIN-682019.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.2749 OF 2020

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JUDGMENT

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Under challenge in this Writ Petition filed by the Kerala State Electricity Board Ltd., (KSEBL) is Ext.P3 order of the Kerala State Electricity Appellate Authority, the 2^nd respondent herein.

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An inspection was conducted in the premises of the 1^st respondent by the officers of the Anti Power Theft Squad, Thiruvananthapuram Unit along with officers of the Electrical Section, Ulloor. It was found that the 1^st respondent had connected ‘Unauthorised Additional Load’ (‘UAL’ for short) of 5152 Watts over and above the sanctioned load. A provisional assessment was made for a sum of Rs.54,466/- under Section 126 of the Electricity Act, 2003 as amended. Later, the 1^st respondent was heard and a final assessment order was passed revising the assessment to Rs.56,237/-.

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The above order was challenged before the Appellate Authority by the 1^st respondent herein.

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By Ext.P3 order, the Appellate Authority relying on a decision of the Apex Court in Executive Engineer and Anr. v. M/S. Seetaram Rice Mill¹ and that of a Division Bench of this Court in Sulabha Marketing (P)

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Ltd. v. Kerala State Electricity Board, Thiruvananthapuram and

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1 [ 2012 (2) SCC 108]

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WP(C).No.2749 OF 2020

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others² allowed the appeal and set aside the final assessment order. It was

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further ordered to revise the assessment at twice the rate for the fixed charge in the light of Sulabha (supra) within 15 days. The KSEB was ordered to refund the excess amount with interest without levying any surcharge for the appeal period.

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Sri.K.Janardhana Shenoy, the learned counsel appearing for the petitioner, submitted that the judgment of this Court based on which the Appellate Authority had interfered with the assessment has been challenged before the Hon’ble Supreme Court. In that view of the matter, the Appellate Authority was not justified in interfering with the assessment order, contends the learned counsel. It is further contended that excess drawal of electricity by the consumer in violation of the conditions of agreement entered into between the Board and the consumer is unauthorized use of electricity and if the consumer is allowed to use excess load in addition to the sanctioned load, it would over burden the transformer and thus the entire distribution system.

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I have considered the submissions advanced and have gone through the impugned order.

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A Division Bench of this Court in Sulabha (supra) has held that

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in the case of a consumer, who is blamed for overdrawing electricity in excess

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2 [2017 (3) KHC 563]

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WP(C).No.2749 OF 2020

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of sanctioned/connected load in the very same premises and for the very same purpose and which do not involve any change in tariff applicable for the relevant category of services for which consumption has already been metered and paid by the consumer, 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. The only pre-condition is that such usage shall not be by any artificial means or through a tampered meter. There is no case for the petitioner that regularization of such additional connected load or enhancement of contract demand necessitates upgradation of the existing distribution system or enhancement of voltage level of supply. The overdrawal of electricity in excess of the sanctioned load was in the very same premises and for the very same purpose and did not involve any change in tariff applicable for the relevant category of service. The contentions advanced by the learned counsel appearing for the petitioner squarely falls within the teeth of the judgment of their Lordships of the Division Bench. This Court is clearly bound by the judgment of their Lordships and the mere fact that the judgment has been challenged before the Supreme Court is of no consequence. In that view of the matter, I find

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WP(C).No.2749 OF 2020

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no reason to interfere with the impugned order.

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Before parting, it is made clear that if the Hon’ble Supreme Court decides the issue in favour of the petitioner after overturning Sulabha (supra), the petitioner would be at liberty to initiate appropriate steps to realize the amount in accordance with law unless there is any other interdiction.

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Reserving such right, this writ petition is dismissed.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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WP(C).No.2749 OF 2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PRIVISIONAL ASSESSMENT DATED 08.03.2017 ISSUED BY THE ASSESSING OFFICER. EXHIBIT P2 A TRUE COPY OF THE FINAL ASSESSMENT ORDER ISSUED BY THE PETITIONER DATED 18.03.2017 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 17.06.2017 PASSED IN APPEAL NO.89/2017 BY THE 2ND RESPONDENT APPELLATE AUTHORITY.

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RESPONDENTS' EXHIBITS:NIL

The Assistant Engineer v. Krishna Kumar

Case brief

What is this about?

What did the court decide?

The Assistant Engineer v. Krishna Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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