M/S.Lachmandas And Sons vs Kerala State Electricity Board
2021 Latest Caselaw 11275 Ker

WP(C).No.3574 OF 2015(V)        -1-

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                       WP(C).No.3574 OF 2015(V)


PETITIONER/S:

                M/S.LACHMANDAS AND SONS
                AGED 62 YEARS
                KOTHAPARAMBIL BUILDINGS, INTUC JUNCTION, NETTOOR
                P.O., KOCHI - 682 304, REPRESENTED BY ITS
                AUTHORISED SIGNATORY & PARTNER DEEPAK L.ASWANI.

                BY ADVS.
                SRI.K.JAJU BABU (SR.)
                SRI.BRIJESH MOHAN
                SMT.M.U.VIJAYALAKSHMI

RESPONDENT/S:

      1         KERALA STATE ELECTRICITY BOARD
                VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695
                004, REPRESENTED BY ITS SECRETARY.

      2         THE DEPUTY CHIEF ENGINEER
                K.S.E.B, ELECTRICAL CIRCLE, ERNAKULAM - 682 018.

      3         THE ASSISTANT EXECUTIVE ENGINEER
                K.S.E.B., ELECTRICAL SUB DIVISION, TRIPUNITHURA -
                682 301, ERNAKULAM.

      4         THE ASSISTANT ENGINEER
                K.S.E.B., ELECTRICAL SECTION, MARADU, ERNAKULAM -
                682 304.

      5         THE KERALA STATE ELECTRICITY REGULATORY COMMISSION
                VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 004,
                REPRESENTED BY ITS CHAIRMAN.

                R1 BY SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE
                ELECTRICITY BO
                R1, R5 BY ADV. SRI.S.SUJIN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.3574 OF 2015(V)            -2-




                            JUDGMENT

Dated this the 8th day of April, 2021

This writ petition is filed by the petitioner basically challenging

Ext. P10 order passed by the Deputy Chief Engineer, KSEB Ltd. by

exercising his powers conferred under Section 127 of the Electricity

Act, 2003.

2. The basic facts for the disposal of the writ petition are as

follows:-

Petitioner is a consumer secured electric connection from the

KSEB Ltd. under the LT VII A tariff. An inspection was conducted in

the premises of the petitioner and the Board authorities have found that

the petitioner has violated the connected load licensed to the petitioner,

and thereupon a provisional notice was issued, secured an objection,

and thereafter passed an order directing the petitioner to pay double the

amount in contemplation of Section 126 of the Electricity Act, 2003.

The said order was challenged by the petitioner before this Court by

filing W. P. (C) No. 35283 of 2008 and secured Ext. P7 judgment dated

30.07.2012.

The order of the assessing officer was interfered with by the

learned Single Judge and directed the assessing officer to reassess the

amount after giving an opportunity of hearing to the petitioner.

Evidently, petitioner thereafter has submitted Ext. P8 representation

also, and taking into account the attendant facts and circumstances, and

after hearing the petitioner and taking note of the argument note

submitted by the petitioner, has passed Ext. P9 order. The operative

portion of the order reads thus:-

"The argument of the Consumer that the total load mentioned in the site mahazar was not being used by him is not acceptable since the total load regularized during the appeal pending period was equal to the total load taken for assessment. The statement of Consumer that the revised penal charges of Rs. 46751/- was confirmed by the Deputy Chief Engineer is against the fact. The revision of assessment done by the assessing officer had been declared illegal and hence the original assessment came in to force vide order No. GB1/3460/2008/3724 dated 13/10/08 of Deputy Chief Engineer, Electrical Circle, Ernakulam which is marked as Exhibit P6 in W. P. (C). Hence fixed charges for the Ual of 4KW @ Rs. 100/- per month for 18 months at 2 times and proportionate energy charges @ Rs. 8.05/- for 4/9 KW of 17052 units of Consumption for the period is payable by the consumer as worked out below.

Penal FC = 2 times x 4KW x Rs. 100 x 18 months = Rs. 14400/- Proportionate EC = 17052 units x 4/9 KW x Rs. 8.05/- = Rs. 61008/-

Total = Rs. 75408/-

Since the Consumer has already remitted Rs. 38175/- (Rs. 23175/- on 16/06/08 and Rs. 15000/- on 16/12/08) it is directed to remit the balance amount of Rs. 37233/- (Rupees thirty seven thousand two hundred and thirty three only) within 30 days on receipt of this order."

Being aggrieved petitioner has challenged the said order before

the appellate authority constituted under Section 127 of the Act read

along with the rules and regulations. The authority elaborately

considered the subject issues raised by the petitioner, and after

providing an opportunity of hearing to the petitioner has passed Ext.

P10 order confirming the order passed by the assessing officer. The

said order reads thus:-

"Findings and Decision

On examining all the connected details such as appeal, proceedings, statements, sitemahazer, calculation etc. the undersigned observed the following.

1. The consumer No 21032 and 21033 are two connections in the same building having VIIA tariff. The two connections are having separate connected load. The squad detected UAL in one

of the connections having con No. 21032.

2. The service connections are separate entities and hence to be assessed for additional load separately. As per prevailing rules and regulations of KSE Board, unauthorised use of electricity includes installing unauthorised connected load in addition to the sanctioned load without permission of the Board.

3. As long as separate bills are issued for monthly current charges UAL connected to one cannot be clubbed with the other. The consumption pattern of the Con No. 21032 shows no worthwhile hike or reduction in consumption for consideration in revision of period of assessment.

Hence UAL detected on any one of the service connection has to be assessed on the same and cannot be relaxed even if there is reduction in load in the other.

The appellant could not substantiate his arguments with reliable documents or evidence during hearing. Hence the undersigned hereby up hold the assessment made by the Asst. Engineer, Ele. Section, Maradu vide order dt 30.11.2012 and is hereby directed to issue notice for realization of the balance amount. Surcharge need not be levied from the consumer for the appeal pending period in this office."

The legality and sustainability of the said orders are basically

under challenge in this writ petition.

3. I have heard learned Senior Counsel appearing for the

petitioner Sri. K. Jaju Babu assisted by Sri. Sachin Ramesh and Sri. G.

Pramod, learned counsel appearing for the Kerala State Electricity

Board Ltd. and perused the pleadings and material on record.

4. The sole question emerges for consideration is that any

interference is required to the orders passed by the statutory authority.

In my considered opinion going through the orders it is clear and

evident that the conclusions were arrived at by the statutory authorities

assimilating various factual circumstances. Therefore the law is well

settled. Unless and until it is established that the factual findings are so

perverse and patent illegality is there, the writ court would not exercise

its power conferred under Article 226 of the Constitution of India and

interfere with the factual circumstances. However, learned counsel for

the petitioner submitted that under law also the authorities have failed.

In order to identify the situation, I think it is only appropriate that

Section 126 of the Act, 2003 is extracted:-

"126. Assessment. --- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his

judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under sub- section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.

(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.

(6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5).

Explanation.- For the purposes of this section,-

(a) "assessing officer" means an officer of a State

Government or Board or licensee, as the case may be, designated as such by the State Government;

(b) "unauthorised use of electricity" means the usage of electricity -

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised; or

(v) for the premises or areas other than those for which the supply of electricity was authorized."

5. On a reading of the said provision, it is categoric and clear that

there is a clear scheme envisaged under the said provision in order to

tackle the situation as that of the one raised by the petitioner. On an

analysis of the provision and the facts and circumstances of this case, I

am of the clear opinion that the authorities have followed the mandate

contained under Section 126 of Act 2003, sufficient opportunity was

provided to the petitioner, objections were received, argument notes

were received, and thereafter only the conclusions were arrived at.

After the amendment of Section 126 on and with effect from

15.06.2007, the assessing authority is entitled to charge double the

amount towards fine for exceeding the connected load licensed to the

petitioner.

6. On a reading of the order passed by the assessing authority it is

quite clear and evident that the assessing authority has charged only

twice the amount which is competent under law. The appellate

authority also reappreciated the entire aspects and has found that the

order passed by the assessing authority is in accordance with law.

Taking into account the factual and legal circumstances, I have

no reason to think that the authorities have committed any illegality or

arbitrariness justifying this Court to exercise the power of judicial

review under Article 226 of the Constitution of India.

Needless to say, writ petition fails. Accordingly it is dismissed.

Sd/-

SHAJI P.CHALY JUDGE

Eb

///TRUE COPY///

P. A. TO JUDGE

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTICE NO.DB 25/08-

09/INSPECTION DATED 21.05.08 ISSUED TO THE PETITIONER BY K.S.E.B. ELECTRIC SECTION, MARADU.

EXHIBIT P2 TRUE COPY OF OBJECTION BEFORE THE 4TH RESPONDENT FILED BY THE LANDLORD OF THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.DB 53/08-09 DATED 29.05.08 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE APPEAL DATED 16.06.08 BEFORE THE APPELLATE AUTHORITY SUBMITTED BY THE PETITIONER.

EXHIBIT P5 TRUE COPY OF THE RECEIPT NO.5550021032 DATED 16.06.08 ISSUED BY THE KERALA STATE ELECTRICITY BOARD SUBMITTED BY THE PETITIONER.

EXHIBIT P6 TRUE COPY OF HTE ORDER DATED 13.10.08 VIDE NO.CB/3460/2008/3724 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 EXHIBIT P7. COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 30.07.2012 IN W.P.OC)NO.35283/2008.

EXHIBIT P8 COPY OF THE OBJECTION DATED 29.09.2012 SUBMITTED BY THE PETITIONER BEFORE THE ASSESSING AUTHORITY.

EXHIBIT P9 COPY OF ORDER NO.BB/INSPN - 12-13/ DATED 30.11.2012 ISSUED BY THE ASSESSING AUTHORITY.

EXHIBIT P10 COPY OF THE ORDER NO.GB/AP/13-14/4337 DATED 05.01.2015.

  EXHIBIT P11         COPY OF THE DEMAND NOTICE
                      NO.BB/UAL/APPEAL/CON NO.21032/2014-
                      15/126 DATED 20.01.2015 IS ISSUED BY
                      THE ASSISTANT ENGINEER.