Dismissed

The Assistant Engineer, Electrical Section v. the Sub Divisional Engineer

Kerala HC6 Feb 2020WP(C)/3208/2020

Case brief

AI extract

What is this about?

In a writ petition, the Kerala State Electricity Board challenged an Appellate Authority order that set aside an assessment for unauthorised additional load. The Single Judge dismissed the petition, holding the Appellate Authority was justified in relying on the Division Bench judgment in Sulabha Marketing (P) Ltd., which limits assessments to twice the fixed charges without transformer upgradatio

What did the court decide?

Writ petition dismissed with liberty to initiate steps to realize amount if Supreme Court overturns Sulabha.

The Assistant Engineer, Electrical Section Vs the… — 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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THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947

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WP(C).No.3208 OF 2020(A)

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PETITIONER:

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THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB LTD, KARUVANNUR, THRISSUR

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BY ADV. SRI.K.JANARDHANA SHENOY

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RESPONDENTS:

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1 THE SUB DIVISIONAL ENGINEER BSS III,BSNL MIRCOWAVE STATION, MISSION QUARTERS, THRISSUR-680001

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2 KERALA STATE ELECTRICITY APPELLATE AUTHORITY, CC 51/52, NEAR 110 KV SUB STATION, VYTTILA,KOCHI-682 019

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.3208 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, Thrissur Unit along with officers of the Electrical Section, Karuvannur. It was found that the 1^st respondent had connected ‘Unauthorised Additional Load’ (‘UAL’ for short) of 5000 Watts over and above the sanctioned load. A provisional assessment was made for a sum of Rs.2,01,060/- under Section 126 of the Electricity Act, 2003 as amended. Later, the 1^st respondent was heard and a final assessment order was passed.

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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

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1 [2012 (2) SCC 108]

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WP(C).No.3208 OF 2020

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Marketing (P) Ltd. v. Kerala State Electricity Board, Thiruvananthapuram and others² allowed the appeal and set aside the final assessment order. It was further ordered to revise the assessment within 15 days at twice the rate under LT VI F tariff on account of the unauthorised additional load of 3000 Watts for fixed charges alone. 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

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through the impugned order.

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2 [2017 (3) KHC 563]

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WP(C).No.3208 OF 2020

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A Division Bench of this Court in Sulabha (supra) has held that in the case of a consumer, who is blamed for overdrawing electricity in excess 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

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WP(C).No.3208 OF 2020

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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 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.3208 OF 2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PROVISIONAL ASSESSMENT DATED 07.03.2017 ISSUED BY THE ASSESSING OFFICER EXHIBIT P2 A TRUE COPY OF THE FINAL ASSESSMENT ORDER ISSUED BY THE PETITIONER DATED 05.04.2017 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.07.2017 PASSED IN APPEAL NO.106/2017 BY THE 2ND RESPONDENT APPELLATE AUTHORITY

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RESPONDENTS' EXHIBITS:NIL

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//TRUE COPY//

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P.A TO JUDGE

The Assistant Engineer, Electrical Section v. the Sub Divisional Engineer

Case brief

What is this about?

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The Assistant Engineer, Electrical Section v. the Sub Divisional Engineer

Case brief

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