The Assistant Executive Engineer vs A.K.Xaviour
2024 Latest Caselaw 15983 Ker

Kerala High Court

The Assistant Executive Engineer vs A.K.Xaviour on 7 June, 2024

Author: Dinesh Kumar Singh

Bench: Dinesh Kumar Singh

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
        FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
                        WP(C) NO. 1399 OF 2020
PETITIONER:

            A.K.XAVIOUR
            AGED 68 YEARS
            S/O. KURUVILLA A.K., RESIDING AT ARUPARAYIL HOUSE,
            PULIKKUTTISSERY P.O., AYMANAM, KOTTAYAM DISTRICT-686
            015.
            BY ADVS.
            V.HARISH
            SRI.RAJAN VISHNURAJ
            SRI.A.L.NAVANEETH KRISHNAN
            SMT.JUHI JAYAPALAN


RESPONDENTS:

    1       THE KERALA STATE ELECTRICITY BOARD LTD
            VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004
            REPRESENTED BY ITS CHAIRMAN.
    2       THE EXECUTIVE ENGINEER
            KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL
            DIVISION, KOTTAYAM-686 012.
    3       THE ASSISTANT EXECUTIVE ENGINEER
            KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SUB
            DIVISION, GANDHINAGAR, KOTTAYAM-686 008.
    4       THE ASSISTANT ENGINEER
            KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL
            SECTION, AYMANAM, KOTTAYAM-686 015.
            BY ADVS.
            G.KEERTHIVAS
            Riji Rajendran


            SRI.AJIT JOY-SC
    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.06.2024, ALONG WITH WP(C).11522/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.(C) Nos.1399 of 2020 & 11522 of 2021
                                      2




               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
           THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
      FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
                         WP(C) NO. 11522 OF 2021
PETITIONERS:

     1      THE ASSISTANT EXECUTIVE ENGINEER,
            ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY
            BOARD LIMITED, GANDHI NAGAR, KOTTAYAM DISTRICT
     2      THE ASSISTANT ENGINEER,
            ELECTRICAL SECTION, KERALA STATE LECTRICITY BOARD
            LIMITED, AYMANAM, KOTTAYAM DISTRICT.
            BY ADVS.
            K.M.SATHYANATHA MENON
            KAVERY S THAMPI


RESPONDENT:

            A.K.XAVIOUR,
            AGED 1 YEARS
            ARUPARAYIL HOUSE, PULIKKUTTISSERY P.O, AYMANAM,
            KOTTAYAM-686015.
            BY ADVS.
            V.HARISH
            A.L.NAVANEETH KRISHNAN



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.06.2024, ALONG WITH WP(C).1399/2020, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 W.P.(C) Nos.1399 of 2020 & 11522 of 2021
                                      3




                              JUDGMENT

Dated this the 7th day of June, 2024

These writ petitions have been filed by the

petitioners impugning the decision of the Electricity

Ombudsman dated 26.08.2019 in Appeal Petition No.

P/045/2019 by the petitioner against the order

passed by the CGRF dated 21.05.2019.

2. The petitioner in W.P (C) No. 1399 of 2020

is a consumer VI tariff. He had taken a single phase

connection in 2015 at the time of construction of his

house. After the completion of the construction work,

the petitioner applied for load enhancement under LT

1 A domestic tariff and conversion of service

connection to LT three phase connection. His

application was made on 18.07.2017. Before making

the application, the connected load was 51326 Watts.

However, on inspection it was found that the

connected load at the premises was 44 KW. On W.P.(C) Nos.1399 of 2020 & 11522 of 2021

03.01.2018, the Executive Engineer, Electric Division,

Pallam, accorded the sanction for the three phase

connection with additional load of 44 KV. An estimate

of expenditure for an amount of Rs.12.23 lakhs for

constructing 950m of 11KV SC OH line and installing

100KVA transformer at the property of the petitioner

for making the petitioner's load requirement was

prepared and accordingly a demand notice was

issued to the petitioner by the respondent.

3. The petitioner challenged the said demand by

filing a complaint No. OP 20/2019 before the CGRF,

Southern Region. The CGRF vide the order dated

21.05.2019, ordered that the distribution licensee is

empowered to recover the expenditure incurred for

providing supply as per Regulation 32 of the Kerala

Electricity Code 2014. The Forum has dismissed the

complaint filed by the petitioner.

4. Aggrieved by the said complaint, the

petitioner approached the Electricity Ombudsman. In W.P.(C) Nos.1399 of 2020 & 11522 of 2021

the impugned order, after considering the relevant

regulations of the Electricity Supply Code, 2014 ie.,

Regulations 32, 35, 36 and 49, the Electricity

Ombudsman has held that the petitioner could not be

liable to pay for installation of new transformer of

high capacity. But, he would be liable to pay the

charges for extension of 11KV line which would be

used exclusively by the petitioner. The learned

counsel for the petitioner submits that, even if the

petitioner is liable to pay charges, the same can be

recovered from the petitioner as the tariff approved

by the Regulatory Commission. On the other hand,

learned counsel for the KSEBL submits that proper

construction of Regulations 32, 35 and 36 would

mean that, for additional load and expenses are to be

borne by the respective consumer, if the equipments

are installed exclusively for the use of the consumer.

5. I have considered the submissions. Having

gone through the impugned order passed by the W.P.(C) Nos.1399 of 2020 & 11522 of 2021

Electricity Ombudsman, I am of the view that the

view taken by the Electricity Ombudsman is in

accordance with the relevant provisions of Electricity

Supply Code. This Court exercising the limited

jurisdiction under Article 227 of the Constitution of

India would not like to interfere with well reasoned

order of the Ombudsman. Therefore, the writ

petitions are dismissed. The Kerala State Electricity

Board Limited is directed to issue a fresh demand in

accordance with the direction issued by the

Ombudsman, if the petitioner is willing to take

additional load and three phase connection.

Sd/-

DINESH KUMAR SINGH JUDGE

AP W.P.(C) Nos.1399 of 2020 & 11522 of 2021

APPENDIX OF WP(C) 1399/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 17.7.2017 SUBMITTED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE COMPLAINT (OP NO.20 OF 2019) DATED 11.3.2019.

EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21.5.2019 OF THE CONSUMER GRIEVANCE REDRESSAL FORUM, KOTARAKARA IN OP NO.20 OF 2019.

EXHIBIT P6 TRUE COPY OF THE APPEAL NO.P/045/2019 FILED BY THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 30.10.2015 IN APPEAL NO.P/129/2015.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WA NOS.1448/2017 & 1482/2017 DATED 16.10.2017. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 26.08.2019 IN

EXHIBIT P10 TRUE COPY OF THE RP NO.5 OF 2019 PREFERRED BY THE 3RD RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 23.10.2019 IN RP NO.5 OF 2019.

Exhibit P12 A TRUE PHOTOCOPY OF THE COMPLAINT DATED 03.05.2018 PREFERRED BY THE LOCAL RESIDENTS IN THE PETITIONER'S LOCALITY TO THE 3RD RESPONDENT Exhibit P13 A TRUE PHOTOCOPY OF THE RTI QUERY DATED 30.01.2019 PREFERRED BY ONE MR. MAHESH VIJAYAN BEFORE THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT Exhibit P14 A TRUE PHOTOCOPY OF THE REPLY DATED 25.02.2019 GIVEN BY THE 1ST RESPONDENT TO MR. MAHESH VIJAYAN Exhibit P15 A TRUE PHOTOCOPY OF THE COMMUNICATED DATED 16.01.2019 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT W.P.(C) Nos.1399 of 2020 & 11522 of 2021

RESPONDENT EXHIBITS

EXHIBIT R1A A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 18.07.2017 EXHIBIT R1B A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 11.11.2018 EXHIBIT R1 C A TRUE COPY OF THE FEASIBILITY STUDY DATED 29.04.2019 W.P.(C) Nos.1399 of 2020 & 11522 of 2021

APPENDIX OF WP(C) 11522/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPLICATION SUBMITTED BY THE RESPONDENT FOR POWER ALLOCATED DATED 18/07/2017.

Exhibit P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE RESPONDENT TO THE SECOND PETITIONER DATED 29.12.2018.

Exhibit P3 TRUE COPY OF THE ORDER DATED 21.05.2019 OF CONSUMER GRIEVANCE REDRESSAL FORUM, SOUTHERN REGION, KOTTARAKKARA IN OP NO.20/2019.

Exhibit P4 TRUE COPY OF THE ORDER DATED 21.05.2019 IN AP NO. P/045/2019 ON THE FILES OF THE STATE ELECTRICITY OMBUDSMAN, EDAPALLY.

Exhibit P5 TRUE COPY OF THE ORDER DATED 23.10.2019 IN RP NO.5/2019 IN APPEAL NO.P/045/2019 ON THE FILES OF THE STATE ELECTIRICITY OMBUDSMAN, EDAPALLY.

Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 16.10.2018 IN W.A NO: 1482/2017 ON THE FILES OF THIS HONOURABLE COURT.

EXHIBIT P7 A TRUE COPY OF THE ESTIMATE REPORT DATED NIL ISSUED BY ASSISTANT ENGINEER, AYAMANAM

RESPONDENT EXHIBITS

EXHIBIT R 1(A) A TRUE COPY OF THE APPLICATION DATED 17.7.2017 SUBMITTED BY THE RESPONDENT

EXHIBIT R 1(B) A TRUE COPY OF THE DEMAND NOTICE DATED 04.06.2018 ISSUED TO THE RESPONDENT