Kerala High Court
The Principal,St.Berchmans ... vs K.S.E.B on 21 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
WP(C) NO. 11327 OF 2009
PETITIONER:
THE PRINCIPAL, ST.BERCHMAN'S COLLEGE,
ST.BERCHMAN'S COLLEGE, CHANGANACHERRY, KOTTAYAM.
BY ADV SRI.JOHN JOSEPH VETTIKAD
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS CHAIRMAN, VITHUTHY BHAVAN, PATTOM,
THIRUVANANTHAPURAM.
2 THE DEPUTY CHIEF ENGINEER
KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE,
PAKKIL, P.O.PALLOM, KOTTAYAM.
3 THE EXECUTIVE ENGINEER
KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION,
CHANGANACHERRY, KOTTAYAM.
4 THE ASST. ENGINEER
KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION,
CHANGANACHERRY, KOTTAYAM.
5 KERALA STATE ELECTRICITY REGULATORY
COMMISSION, 30, PARAMESWARA BHAVAN, BETHEAVEN GARDENS,
KAWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS
CHAIRMAN.
BY ADVS.
SRI.N.RAPHY RAJ, SC, K.S.E.B
SRI.N.SATHEESH
SRI.ANEESH JAMES,SC,KSEB REGULATORY COM
SRI.P.P.THAJUDEEN, SC, K.S.E.B
SRI.S.SUJIN, SC, ELECTRICITY REGULATORY COMMISSION
SRI.JOSWIN THAMBI K., SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 11327 OF 2009
2
P.V.KUNHIKRISHNAN, J.
------------------------------
W.P.(C).No. 11327 of 2009
----------------------------------------------
Dated this the 21st day of October, 2022
JUDGMENT
The above writ petition is filed with the following
prayers:
"(i) Issue a writ of certiorari or other
appropriate writ in the nature thereof calling for the
records relating to Exhibit P3 to P6 and P8 and quash
the same.
(ii) Declare that the respondents are not
entitled to collect proportionate energy charges for
the unauthorized additional load from the petitioner
for the month from 4/2008 to 11/2008.
(iii) Issue a writ of mandamus or other
appropriate writ, order or direction in the nature
thereof directing the respondents withdraw the
illegal penal bills for the unauthorized additional load
for the month from 4/2008 to 11/2008.
(iv) Pass such other writ order or direction as
this court may deem fit and proper in the interest of
justice."[SIC]
WP(C) NO. 11327 OF 2009
2. The grievance of the petitioner is about the
demand of proportionate energy charges on the alleged
unauthorized load. When this writ petition came up for
consideration, both sides submitted that the point
raised in this writ petition is covered by the judgment
dated 25.01.2012 in W.P.(C)No.25106 of 2008. It will
be better to extract the above judgment:
"1. Heard the learned counsel for the petitioner
and the learned standing counsel Sri.P.Santhalingam
for the Kerala State Electricity Board.
2. The issue involved in this case is squarely
covered by the decision in Executive Engineer and
another v. Sitaram Rice Mill reported in (2010 (4)
KHC 1) wherein the Apex Court in paragraphs 44 and
46 held as follows:
"44. Minimum energy charges are to be levied
with reference to 'contract demand' at the rate
prescribed under the terms and conditions. These
clauses of the agreement clearly show that the
charges for consumption of electricity are directly
relatable to the sanctioned/connected load and
also the load consumed at a given point of time if
it is in excess of the sanctioned/connected load.
WP(C) NO. 11327 OF 2009
The respondent could consume electricity upto
110 KVA but if the connected load exceeded that
higher limit, the category of the respondent itself
could stand changed from 'medium industry'
which will be governed by a higher tariff.
45. XXX
46. On the cumulative reading of the terms
and conditions of supply, the contract executed
between the parties and the provisions of the
2003 Act, we have no hesitation in holding that
consumption of electricity in excess of the
sanctioned/connected load shall be an
'unauthorised use' of electricity in terms of
Section 126 of the 2003 Act. This, we also say
for the reason that overdrawal of electricity
amounts to breach of the terms and conditions
of the contract and the statutory conditions,
besides such overdrawal being prejudicial to the
public at large, as it is likely to throw out of gear
the entire supply system, undermining its
efficiency, efficacy and even increasing voltage
fluctuations. In somewhat similar circumstances,
where the consumer had been found to be
drawing electricity in excess of contracted load
and the general conditions of supply of electricity
energy by the Board and Clause 31(f) of the
same empowered the Board to disconnect supply
WP(C) NO. 11327 OF 2009
and even levy higher charges as per the tariff
applicable, this Court held that such higher tariff
charges could be recovered. While noticing the
prejudice caused, the Court in the case Bhilari
Rerollers and others v. M.P.Electricity Board and
others (2003 KHC 1521 : 2003 (7) SCC 185 : JT
2003 (7) SC 215), held as under:
"21. The respondent Board, therefore, is
entitled to raise the demand under challenge
since such right has been specifically
provided for and is part of the conditions for
supply and particularly when such drawal of
extra load in excess of the contracted load is
bound to throw out of gear the entire supply
system undermining its efficiency, efficacy
not only causing stress on the installations of
the Board but considerably affect other
consumers who will experience voltage
fluctuations. Consequently, we see no merit
in the challenge made on behalf of the
appellants. The appeals, therefore, fail and
shall stand dismissed but with no costs."
3. In that view of the authoritative
pronouncement of the Apex Court, I set aside the
order of the assessing authority as well as the
appellate authority and remit the matter to the
assessing officer to dispose of the same in accordance
WP(C) NO. 11327 OF 2009
with the judgment referred above. Learned counsel
for the petitioner submits that no penalty can be
levied under Section 126 of the Electricity Act, 2003.
The assessing authority, while considering the matter,
shall take into consideration all the observations of
the State Electricity Regulatory Commission in
D.P.75/2009 dated 19.1.2010 and the judgment of
the Apex Court and decide the question afresh after
giving the petitioner an opportunity of being heard.
The entire exercise shall be completed within a period
of two months from the date of receipt of a copy of
this judgment subject to the condition that, as
agreed, the petitioner deposits 50% of the demand
within one month and the amount, if any deposited,
shall be adjusted. In order to avoid delay, let the
petitioner appear before the authority along with a
copy of this judgment on 14.2.2012. It is open to the
petitioner to raise all relevant points before the
assessing authority, if so advised.
Writ petition is disposed of as above."
3. In the light of the same, I think this writ
petition also can be disposed of in tune with the
judgment dated 25.01.2012 in W.P.(C)No.25106 of
2008.
WP(C) NO. 11327 OF 2009
Therefore, this writ petition is allowed in the
following manner:
i) Exts.P3 to P8 are set aside.
ii) The 2nd respondent is directed to pass
appropriate orders in accordance to law and in tune
with the observations in the judgment dated
25.01.2012 in W.P.(C)No.25106 of 2008, as
expeditiously as possible, at any rate, within a period
of three months from the date of receipt of a copy of
this judgment.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
WP(C) NO. 11327 OF 2009
APPENDIX OF WP(C) 11327/2009
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE LETTER NO.
BB/CHRY/PENALTY-BILL/07-08/33 DATED
21-12-2007.
EXHIBIT P2 THE TRUE COPY OF THE BILL DATED 4-2-
2008 AND THE RECEIPT DATED 18-2-
2008.
EXHIBIT P3 THE TRUE COPY OF THE PROPORTIONATE
CURRENT CHARGES FOR THE MONTH OF
7/08 TO 10/08 DATED 12-11-2008.
EXHIBIT P4 THE TRUE COPY OF THE PROPORTIONATE
CURRENT CHARGES FOR THE MONTH OF
4/2008 DATED 16-5-2008.
EXHIBIT P5 THE TRUE COPY OF THE PROPORTIONATE
CURRENT CHARGES FOR THE MONTH OF
5/2008 DATED 18-6-2008.
EXHIBIT P6 THE TRUE COPY OF THE PROPORTIONATE
CURRENT CHARGES FOR THE MONTH OF
6/2008 DATED 16-7-2008.
EXHIBIT P7 THE TRUE COPY OF THE OBJECTION DATED
25-11-2008 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH
RESPONDENT.
EXHIBIT P8 THE TRUE COPY OF THE REPLY DATED 9-
1-2009 GIVEN 4TH RESPONDENT.
EXHIBIT P9 THE TRUE COPY OF THE ORDER NO. B.O.
(FM) NO. 368/2008 (DPC)/C1-
G.1/182/2007 DATED 7-2-2008.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY// PA TO JUDGE
