Dismissed

The Assistant Executive Engineer,, v. Sam C.K.

Kerala HC7 Feb 2020WP(C)/3401/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an appellate order that set aside an electricity bill for unauthorized load. Relying on its own earlier judgment in Sulabha Marketing, which held assessment must be limited to twice fixed charges absent need for grid upgradation, the Court refused interference despite the Sulabha decision pending before the Supreme Court.

What did the court decide?

The writ petition is dismissed and the impugned order of the Appellate Authority allowing the appeal is allowed.

The Assistant Executive Engineer,, Vs Sam C.K. — Service and Employment | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

¶4

FRIDAY, THE 07TH DAY OF FEBRUARY 2020 / 18TH MAGHA, 1941

¶5

WP(C).No.3401 OF 2020(A)

¶6

PETITIONER:

¶7

THE ASSISTANT EXECUTIVE ENGINEER,, ELECTRICAL SUB DIVISION, KSEB LTD, KOLLAKADAVU, ALAPPUZHA DISTRICT

¶8

BY ADV. SRI.K.JANARDHANA SHENOY

¶9

RESPONDENTS:

¶10

1 SAM C.K., MANAGING PARTNER, CHEMMARATHIL CHASHEW FACTORY, MANKAMKUZHY, VEITTYAR, KOLLAM-690 558

¶11

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

¶12

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶13

WP(C).No.3401 OF 2020

¶14

¶15

JUDGMENT

¶16

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.

¶17

An inspection was conducted in the premises of the 1^st respondent by the officers of the Anti Power Theft Squad, Thiruvalla Unit along with officers of the Electrical Section, Kollakadavu. It was found that the 1^st respondent had connected ‘Unauthorised Additional Load’ (‘UAL’ for short) of 49.274 KW over and above the sanctioned load. A provisional assessment was made for a sum of Rs.20,30,824/- under Section 126 of the Electricity Act, 2003 as amended. Later, the amount was revised to

¶18

Rs.9,95,635/- and a final assessment was made by order dated 19.04.2018.

¶19

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

¶20

By Ext.P3 order, the Appellate Authority relying on a decision of the Apex Court in Executive Engineer and Anr. v. M/S. Seetaram

¶21

WP(C).No.3401 OF 2020

¶22

¶23

Rice Mill¹ and that of a Division Bench of this Court in Sulabha 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 HT I A industrial tariff for demand charges alone in the light of the decision of this Court in Sulabha (supra). The KSEB was ordered to refund the excess amount with interest without levying any surcharge for the appeal period.

¶24

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.

¶25

1 [ 2012 (2) SCC 108]

¶26

2 [2017 (3) KHC 563]

¶27

WP(C).No.3401 OF 2020

¶28

¶29

I have considered the submissions advanced and have gone

¶30

through the impugned order.

¶31

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

¶32

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

¶33

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

¶34

WP(C).No.3401 OF 2020

¶35

¶36

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 no reason to interfere with the impugned order.

¶37

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.

¶38

Reserving such right, this writ petition is dismissed.

¶39

Sd/-

¶40

RAJA VIJAYARAGHAVAN V

¶41

JUDGE

¶42

¶43

WP(C).No.3401 OF 2020

¶44

¶45

APPENDIX

¶46

PETITIONER'S/S EXHIBITS:

¶47

EXHIBIT P1 TRUE COPY OF THE PROVISIONAL ASSESSMENT DATED 22.03.2018 ISSUED BY THE ASSESSING OFFICER EXHIBIT P2 A TRUE COPY OF THE FINAL ASSESSMENT ORDER ISSUED BY THE PETITIONER DATED 19.04.2018 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 27.06.2018 PASSED IN APPEAL NO.123/2018 BY THE 2ND APPELLATE AUTHORITY

The Assistant Executive Engineer,, v. Sam C.K.

Case brief

What is this about?

What did the court decide?

The Assistant Executive Engineer,, v. Sam C.K.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Saraswathy Amma Vs the Executive Engineer

Sunder Wheat Roller Flour Mills Private Ltd. Vs Kerala State Electricity Board

The Assistant Engineer, Electrical Section Vs the Sub Divisional Engineer

Ibrahim Vs State of Kerala

Asgar Vs P. S. Viswambharan

Asgar Vs P.S.Balakrishna Kamath