Kerala High Court
Malabar Medical College Hospital & ... vs Kerala State Electricity Board Ltd on 24 October, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
WA NO. 1532 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.33312 OF
2022 OF HIGH COURT OF KERALA
APPELLANT:
MALABAR MEDICAL COLLEGE HOSPITAL & RESEARCH
CENTRE,
SREE ANJANEYA MEDICAL TRUST MODAKKALLUR, ULLIYERI
P.O., KOZHIKODE-673323, REPRESENTED BY ITS
CHAIRMAN., PIN - 673323
BY ADVS.
S.VINOD BHAT
ANAGHA LAKSHMY RAMAN
V.NAMITHA
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LTD.,
VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-
695004, REPRESENTED BY ITS SECRETARY., PIN -
695004
2 THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY
BOARD LTD., WEST HILL, KOZHIKODE-673005., PIN -
673005
3 THE KERALA STATE ELECTRICITY APPELLATE AUTHORITY,
(CONSTITUTED UNDER SECTION 127 OF ELECTRICITY ACT,
2003), CC 51/52, NEAR 110 KV SUB STATION, VYTTILA,
KOCHI-682019., PIN - 682019
4 CHAIRMAN,
KERALA STATE ELECTRICITY REGULATORY COMMISSION,
VALLAYAMBALAM, THIRUVANANTHAPURAM-695001., PIN -
695001
SRI B PREMOD, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
24.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA. No.1532 of 2024
2
2024:KER:80772
JUDGMENT
Dated this the 24th day of October, 2024
Nitin Jamdar, C.J.
Heard Mr.S.Vinod Bhat, learned counsel appearing for the
Appellants and Mr.B.Premod, learned Standing Counsel for Respondents
No.1 & 2.
2. This is an Appeal challenging the Judgment delivered by the
learned Single Judge, dated 31 July 2024 dismissing the Writ Petition
No.33312/2022. It was on 29 June 2016 that a surprise inspection was
conducted in the premise of the Appellant / Petitioner, where
unauthorized use of Electricity as defined under Section 126(6)(b) of the
Electricity Act, 2003 (Act, 2003) was noticed. After the final assessment
order was issued, instead of filing an Appeal, the Petitioner has filed a
Writ Petition. Thereafter, the Writ Petition was dismissed since Petitioner
had a remedy of Appeal. Following this dismissal, Petitioner proceeded to
file an Appeal. The Appellate Authority set aside the final assessment
order and directed revision. This order was again challenged by the
Petitioner vide a second Writ Petition No. 5135/2017 which proceedings
were remitted back. Then, the Appellate Authority delivered a Judgment
on 3 June 2022 which was challenged by the Appellant/Petitioner by way
of Writ Petition No.33312 of 2022. Thus the third time, Petitioner is
before this Court concerning the same subject matter.
3. The first contention raised by the learned counsel for the Appellant
2024:KER:80772
is that there was no unauthorized extension which was the finding
rendered by the Appellate Authority. Learned counsel submitted that,
this finding was the basis for provisional assessment and once that finding
is rendered, it cannot be said that there was any unauthorized use of
electricity. The learned counsel also sought to rely upon a general order
regarding the schedule of tariff and terms and conditions with effect from
1 July 2012 to 31 March 2013. The learned counsel for the Petitioner also
sought to contend that the officer of the Respondent Board who have
initiated proceedings was not an Authorized Officer as defined under the
Act of 2003.
4. Taking the last contention first, regarding authorized officer, this
was never raised throughout the entire proceedings, whether before the
Appellate Authority or the learned Single Judge. The learned counsel for
the Appellant sought to contend that this is a legal contention and they
can be taken. If this contention was raised at the inception, the
Respondent Board could have taken remedial action. Even otherwise, the
contention of the counsel for Respondent No.4 is that notification has
been duly issued authorizing the officer who has initiated proceedings,
and therefore, there is no error or lack of jurisdiction.
5. As regards the unauthorized use is concerned, the learned Single
Judge has rightly recorded that it is a finding of fact. Section 126(6)(b) of
the Act, 2003 states what is an unauthorized use of electricity and five
types of unauthorized use of electricity are enumerated. Even assuming
that the case of the Appellant was related to Section 126(6)(b)(V), as
2024:KER:80772
pointed out by the learned counsel for Respondent No.1 Board,
considering the definition of Premises, it also covers Clause 4. Ultimately,
Tribunal has rendered a finding of fact under the broad head of
unauthorized use of electricity. Once this finding of fact is not perverse,
merely because another view can be taken, interference in Writ
jurisdiction under certiorari jurisdiction is not warranted. The Writ
Petition was rightly dismissed. Accordingly, this Writ Appeal stands
disposed of.
sd/-
Nitin Jamdar
Chief Justice
sd/-
S. Manu
Judge
Nsd
2024:KER:80772
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE PROVISIONAL ASSESSMENT
INVOICE DATED 02.07.2016
Annexure 2 TRUE COPY OF THE PETITIONER'S OBJECTION
DATED 05.07.2016
Annexure 3 TRUE COPY OF THE ASSESSMENT ORDER DATED
29.07.2016 PASSED BY THE ASSESSING
OFFICER
Annexure 4 TRUE COPY OF APPEAL NO. 235 OF 2016 FILED
BY THE PETITIONER BEFORE THE APPELLATE
AUTHORITY
Annexure 5 TRUE COPY OF THE ORDER DATED 17.12.2016
IN APPEAL NO. 235 OF 2016
Annexure 6 TRUE COPY OF THE SRO NO. 229/05 PUBLISHED
IN G. O. (P) NO. 4/05/PD DATED 02.03.05
IN K.G.EXT.NO.498 DATED 03.03.2005
Annexure 7 TRUE COPY OF THE RELEVANT PAGES OF THE
ORDER DATED 15.03.2011 IN PETITION DP
84/2010 OF THE KERALA STATE ELECTRICITY
REGULATORY COMMISSION, THIRUVANANTHAPURAM
