Kerala High Court
Mascom Steel (India) Pvt. Ltd vs The Assistant Engineer on 20 May, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
WP(C) NO. 29139 OF 2023
PETITIONER:
MASCOM STEEL (INDIA) PVT. LTD,
ERUMATHALA P.O., V-713, NEAR IDA, ALUVA,
ERNAKULAM DISTRICT, KERALA,
REPRESENTED BY ITS MANAGING DIRECTOR SRI.GEORGE
ANTONY, PIN - 683112
BY ADVS.
N.JAMES KOSHY
ALEX ABRAHAM
RESPONDENTS:
1 THE ASSISTANT ENGINEER
KERALA STATE ELECTRICITY BOARD LTD.,
EDATHALA SECTION, ALUVA,
ERNAKULAM DISTRICT, PIN - 683563
2 THE DEPUTY CHIEF ENGINEER
KERALA STATE ELECTRICITY BOARD LTD.,
PERUMBAVOOR, ERNAKULAM DISTRICT,
PIN - 683542
3 THE SPECIAL OFFICER (REVENUE)
KERALA STATE ELECTRICITY BOARD LTD.,
VYDYUTHI BHAVANAM, PATTOM PLACE P.O.,
THIRUVANANTHAPURAM, PIN - 695004
4 KERALA STATE ELECTRICITY BOARD LTD
VYDYUTHI BHAVANAM, PATTOM PLACE P.O.,
THIRUVANANTHAPURAM,
REPRESENTED BY ITS CHAIRMAN AND MANAGING
DIRECTOR,
PIN - 695004
5 THE CHIEF ELECTRICAL INSPECTOR
GOVERNMENT OF KERALA,
OFFICE OF THE CHIEF ELECTRICAL INSPECTOR,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM, PIN - 695001
W.P.(C) No.29139/2023
:2:
6 THE ASSISTANT EXECUTIVE ENGINEER
KERALA STATE ELECTRICITY BOARD LTD.,
ELECTRICAL SUB DIVISION, KIZHAKKAMBALAM,
ERNAKULAM DISTRICT, PIN - 683562
SRI.B.PRAMOD(STANDING COUNSEL)FOR R1 TO R4 & R6
SRI.S.GOPINATHAN, SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.29139/2023
:3:
N. NAGARESH, J.
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W.P.(C) No.29139 of 2023
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Dated this the 20th day of May, 2024
JUDGMENT
~~~~~~~~~
The petitioner, a Private Limited Company
engaged in the manufacture of steel bars, is before this
Court aggrieved by Ext.P36 proceedings of the Assessing
Officer under the Electrical Sub Division, Kizhakkambalam.
By Ext.P36, a final assessment order was made against the
petitioner for an amount of ₹4,17,41,199/-.
2. The petitioner was granted power connection of
1000 KVA HT up to the year 2017. In the year 2017, the
petitioner noted that a minimum load of 2500 KVA was
necessary for the working of the factory. The petitioner
submitted a request dated 15.02.2017 to increase contract
demand to 2500 KVA immediately. Thereupon, Ext.P3
feasibility report was drawn. The 2nd respondent accorded
administrative sanction to an estimate amount of
₹51,43,730/- for executing the work of enhancing the
connected load. As demanded, the petitioner remitted
₹20,82,500/-. After necessary work, the 5 th respondent
granted sanction for energisation for installation in the
factory.
3. On 17.09.2018, the petitioner submitted a formal
application for service connection with enhanced contract
demand of 3120.5 HP. The service connection required
NOC from the Panchayat. The Panchayat denied grant of
NOC for enhancing the connected electricity load. The
petitioner filed appeal No.553/2016 in the Tribunal for Local
Self Government Institutions. The Tribunal set aside the
order of the Panchayat and directed the Secretary to
reconsider application for NOC afresh.
4. On 15.01.2019, the Additional District Magistrate
gave sanction to draw the line to enhance the power supply
to the petitioner. The unit was thereafter energised with a
contract demand of 3120.5 HP.
5. To the surprise of the petitioner, they were served
with Exts.P20 to P31 demand notices and collected energy
charges from the petitioner one and a half time the demand
charges. The amounts totalled to ₹77,51,250/-. Thereafter,
a team of KSEB officers inspected the Company on
15.07.2023 and prepared Ext.P33 mahazar. In Ext.P33, it
was alleged that the connected load in the unit is 3570200
Watts. On the basis of Ext.P33, Ext.P34 provisional bill for
₹4,18,21,242/- was issued to the petitioner. The petitioner
submitted Ext.P35 objection to the provisional assessment.
The 6th respondent, however, passed Ext.P36 final order
confirming the liability of ₹4,17,41,199/-. The petitioner was
required to pay the amount within 30 days.
6. The petitioner states that Ext.P36 final order is
arbitrary and illegal. Ext.P34 provisional bill was issued
without stating any reason for the assessment. The
petitioner had applied for enhancement of contract demand.
No decision on the application for enhancement of loan was
given to the petitioner. As per Regulation 99(8), sanction
should be deemed to have been granted with effect from 31 st
day of the date of submission of application by consumer.
7. The petitioner urged that the respondents have
not issued any notice to the petitioner as contemplated under
Regulation 101 until Ext.P36 was passed. Ext.P36 violates
the provisions of the Electricity Supply Code, 2014. The
petitioner also pointed out various illegalities/irregularities in
the matter of assessment and urged that Ext.P36 final order
be quashed and respondents be directed to refund the
excess amount collected from the petitioner.
8. Standing Counsel entered appearance on behalf
of the respondents and resisted the writ petition. On behalf
of the respondents, it is submitted that the agreed contract
demand and connected load of the petitioner was 1000 KVA
and 792.15 KW respectively. An inspection conducted
revealed that the consumer is having a total connected load
of 3570.200 KW. Sanction was given for constructing 2200
metres HP ABC from 110 KV Edathala SS to the petitioner's
premises for an extent of 1500 KVA in addition to existing
1000 KVA. The work was completed and energised on
09.04.2019.
9. The respondents submitted that the petitioner was
issued notice dated 08.08.2009 for regularising the
connected load. The petitioner failed to submit application
for load regularisation. The petitioner was aware of the
existence of unauthorised connected load. The writ petition
is devoid of any merit, contented the respondents.
10. I have heard the learned counsel for the petitioner,
the learned Standing Counsel representing respondents 1 to
4 and 6 and the learned Government Pleader representing
the 5th respondent.
11. It is an admitted position that the consumer has
signed a High Tension agreement with the licensee on
02.12.2009 for the use of electricity under industrial tariff for
a connected load of 792.15 KW and contract demand of
1000 KVA. The Anti Power Theft Squad conducted an
inspection of the premises of the petitioner on 15.07.2023.
The inspection revealed unauthorised additional load of 2778
KW against the sanctioned load of 792 KW. The total load
connected to the supply system at the time of inspection was
3570 KW. It was in the said circumstances that the
provisional assessment order for ₹4,18,21,242/- was issued
on 25.07.2023.
12. If the connected load / contract demand exceeds,
the unauthorised connected load will attract Section 126(6)
(b)(ii) of the Indian Electricity Act, 2003.
13. The argument of the petitioner and objection
raised by the petitioner in Ext.P35 is that the petitioner had
submitted application for enhancement of connected load. If
an application is submitted for service connection and orders
are not passed within the specified time, the consumer is free
to use the applied quantity of electricity on payment of
electricity charges without penalty. Therefore, the penalty of
1.5 times is illegal as the petitioner has consumed less than
the connected load applied for.
14. The respondents would urge that no evidence was
submitted by the petitioner during the hearing held on
08.08.2023 for the remittance of the application fee for load
regularisation in the industrial unit. The power allocation
application was submitted only on 05.01.2018. The power
allocation sanctioned was issued only on 12.04.2018.
15. The question therefore arises whether the
petitioner-Company had submitted application for
enhancement of contract demand. The issues therefore
involve disputed questions of fact. The Electricity Act
provides for appeal against assessment of penalty. The
petitioner has alternate remedy to file appeal under Section
127 of the Electricity Act, 2003.
16. In the facts and circumstances of the case, it
would be only appropriate that the petitioner files statutory
appeal against the impugned orders. The statute prescribes
a limitation of 30 days for entertaining an appeal. The statute
also prescribes for pre-deposit. Taking into consideration the
fact that the petitioner has been bona fide agitating his case
before this Court filing the writ petition and taking into
account the stakes involved in the matter, I am of the view
that if the petitioner prefers an appeal making the statutory
pre-deposit, then the appellate authority shall consider the
appeal on merits and pass orders.
The writ petition is therefore disposed of permitting
the petitioner to file a statutory appeal against Ext.P36 order
making requisite pre-deposit, within a period of two weeks. If
the petitioner files the appeal satisfying all other statutory
requirements within a period of two weeks, then the appellate
authority shall consider the appeal on merits and pass final
orders within a further period of two months. If appeal is filed
by the petitioner making deposit as directed above, coercive
proceedings, if any, proposed against the petitioner shall
stand deferred till the appellate authority takes final decision.
Sd/-
N. NAGARESH, JUDGE
aks/14.05.2024
APPENDIX OF WP(C) 29139/2023
PETITIONER'S EXHIBITS
Exhibit-P1 TRUE COPY OF THE COMMUNICATION
NO.MISPL/MISC/0001 DATED 05.08.2015
ISSUED BY THE PETITIONER TO THE 3RD
RESPONDENT
Exhibit-P2 TRUE COPY OF THE LETTER DATED
15.02.2017 ISSUED BY THE PETITIONER TO
THE 2ND RESPONDENT FOR ENHANCING THE
CONTRACT DEMAND
Exhibit-P3 TRUE COPY OF THE FEASIBILITY REPORT
DATED 15.01.2018 SUBMITTED BY THE 1ST
RESPONDENT TO THE ASSISTANT ENGINEER
66 KV SUB STATION, EDATHALA
Exhibit-P4 TRUE COPY OF THE LETTER NO.ECP/T2/
HT/MASCOM STEEL/2018-19/90/12.4.18
DATED 07.04.2018 ISSUED BY THE 2ND
RESPONDENT TO THE 3RD RESPONDENT
Exhibit-P5 TRUE COPY OF THE ADMINISTRATIVE
SANCTION ORDER NO.1/ECP/ 2018-
19/PBVR/T2/HT-MASCOM STEEL/88 DATED
12.04.2018 ISSUED BY THE 2ND
RESPONDENT TO THE 6TH RESPONDENT WITH
ESTIMATE OF THE WORK SANCTIONED BY THE
2ND RESPONDENT
Exhibit-P6 TRUE COPY OF THE LETTER DATED
13.04.2018 ISSUED BY THE PETITIONER TO
THE 1ST RESPONDENT
Exhibit-P7 TRUE COPY OF THE RECEIPT NO.476477
DATED 13.04.2018 FOR REMITTING
RS.20,82,500/- ISSUED BY THE OFFICE OF
THE 1ST RESPONDENT TO THE PETITIONER
Exhibit-P8 TRUE COPY OF THE SAID REQUEST MADE BY
THE 1ST RESPONDENT FOR APPROVAL TO
ELECTRICAL INSPECTOR, VYTTILA
Exhibit-P9 TRUE COPY OF THE SANCTION ORDER NO.B3-
20444/2017/CEI DATED 22.05.2018 ALONG
WITH DETAILS OF THE CONNECTED LOAD
SANCTIONED BY THE 5TH RESPONDENT TO
THE PETITIONER
Exhibit-P10 TRUE COPY OF THE REQUEST MADE BY THE
1ST RESPONDENT TO THE 6TH RESPONDENT
AS PER LETTER NO.DB/EDATHALA/2018-
19/21 DATED 23.05.2018
Exhibit-P11 TRUE COPY OF THE APPLICATION FOR
SERVICE CONNECTION DATED 17.09.2018
SUBMITTED BY THE PETITIONER BEFORE THE
4TH RESPONDENT
Exhibit-P12 TRUE COPY OF THE SIGNED DEED OF
AGREEMENT SIGNED BY THE PETITIONER
Exhibit-P13 TRUE COPY OF THE COMMUNICATION
NO.ECP/T2/GENERAL/2018-19/2315/
8.11.18 DATED 01.11.2018 ISSUED BY THE
2ND RESPONDENT TO THE PETITIONER
Exhibit-P14 TRUE COPY OF THE ORDER IN APPEAL
NO.553/2016 DATED 29.11.2018 OF THE
TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM
Exhibit-P15 TRUE COPY OF THE RECEIPT DATED 162278
DATED 24.11.2018 ISSUED BY THE KSEB
LTD. FOR REMITTANCE OF RS.1,78,800/-
Exhibit-P16 TRUE COPY OF THE COMPLAINT NO.DB2/18-
19/EDLA/63 DATED 01.12.2018 SUBMITTED
BY THE PETITIONER BEFORE THE STATION
HOUSE OFFICER, EDATHALA POLICE STATION
Exhibit-P17 TRUE COPY OF THE COMPLAINT
NO.DB/10/KBLM/CASES/18-19/174 DATED
07.12.2018 SUBMITTED BY THE 6TH
RESPONDENT BEFORE THE ADDITIONAL
DISTRICT MAGISTRATE, KAKKANAD
Exhibit-P18 TRUE COPY OF THE SANCTION ORDER
NO.DCEKM-11391/2018/MS DATED
15.01.2019 OF THE ADDITIONAL DISTRICT
MAGISTRATE, KAKKANAD
Exhibit-P19 TRUE COPY OF THE CHALLAN DATED
03.04.2019 BY REMITTING RS.1270/- OF
THE KSEB ENERGISATION APPROVAL ISSUED
BY THE SUB TREASURY, TRIPUNITHURA
Exhibit-P20 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 03.08.2022
Exhibit-P21 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 02.09.2022
Exhibit-P22 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 06.10.2022
Exhibit-P23 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 03.11.2022
Exhibit-P24 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 02.12.2022
Exhibit-P25 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 04.01.2023
Exhibit-P26 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 02.02.2023
Exhibit-P27 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 02.03.2023
Exhibit-P28 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 04.04.2023
Exhibit-P29 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 03.05.2023
Exhibit-P30 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 02.06.2023
Exhibit-P31 TRUE COPIES OF THE DEMAND NOTICES FOR
AUGUST, 2022 TO DECEMBER, 2022 AND FOR
JANUARY, 2023 TO JULY, 2023 AS PER
BILL DATED 06.07.2023
Exhibit-P32 TRUE COPY OF THE SUMMARY OF BILLS
SHOWING THE PENALTY COLLECTED FROM THE
PETITIONER WITHOUT ANY VALID REASON
AMOUNTING TO RS.77,51,250/-
Exhibit-P33 TRUE COPY OF THE MAHAZAR DATED
15.07.2023 PREPARED BY A TEAM OF KSEB
OFFICERS OF THE PETITIONER'S COMPANY
Exhibit-P34 TRUE COPY OF THE PROVISIONAL ORDER
NO.DB/36/2023-24/KBLM/PROVISIONAL
BILL/ORDER DATED 25.07.2023 ISSUED BY
THE 6TH RESPONDENT TO THE PETITIONER
Exhibit-P35 TRUE COPY OF THE OBJECTION DATED
08.08.2023 SUBMITTED BY THE PETITIONER
BEFORE THE 6TH RESPONDENT
Exhibit-P36 TRUE COPY OF THE FINAL ORDER
NO.DB/36/2023-24/KBLM/FINAL BILL/
ORDER NO.229 DATED 09.08.2023 ISSUED
BY THE 6TH RESPONDENT
Exhibit-P37 TRUE COPY OF THE NOTICE NO.ECP/T4/CD
EXCEEDING/2023-24/1304 DATED
22.08.2023 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
