Kerala High Court
Smt.Aleyamma Thomas vs Kerala State Electricity Board Limited on 13 September, 2024
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WP(C)No.16301 of 2017 2024:KER:70362
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(C) NO. 16301 OF 2017
PETITIONER:
SMT.ALEYAMMA THOMAS
W/O. V.L THOMNAS, VALLIKATTIL HOUSE,
ETTUMANOOR, KOTTAYAM DISTRICT.
BY ADVS.
SRI.J.JULIAN XAVIER
SRI.FIROZ K.ROBIN
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LIMITED,
REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM,
PATTOM, THIRUVANANTHAPURAM, PIN-695 004.
2 ASSISTANT ENGINEER,
KSEB LIMITED, ELECTRICAL SECTION,
ETTUMANOOR, KOTTAYAM DISTRICT.
3 KERALA STATE ELECTRICITY APPELLATE AUTHORITY,
CC 51/52, NEAR 110 KV SUB STATION,
VYTTILA, KOCHI-682 019.
BY ADVS.
SRI.N.RAPHY RAJ,
SRI.S. NIRMAL, SC, KERALA STATE ELECTRICITY BOARD
LIMITED
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING
ON 13.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C)No.16301 of 2017 2024:KER:70362
JUDGMENT
Petitioner, a consumer of electricity under the LT-IV industrial
tariff, is before this Court challenging Exts.P5 and P8 assessment
as well as the appellate order issued by the Assistant Engineer,
Electrical Section, Ettumanoor and the Kerala State Electricity
Appellate Authority (2nd and 3rd respondents), respectively.
2. The short facts necessary for the disposal of this writ
petition are as under:
The petitioner was conducting a small-scale industrial (SSI)
unit under the name and style of M/s.Shine Ice Products, Pala
Road, Ettumanoor, engaged in the manufacture of ice-creams. The
petitioner was having an LT-IV connection with Consumer
No.7706. The adjacent building to the petitioner's unit was also
owned by the petitioner. However, the said building was rented out
to another person named Sri.Hamsa to run a workshop. The third
party afore referred had also obtained another LT-IV tariff
connection having Consumer No.15961. In the portion under her
possession having Consumer No.7706, the petitioner was running
the ice-cream manufacturing business and in the adjacent
premises having Consumer No.15961, the third party was running
a workshop. The third party subsequently decided to stop his
WP(C)No.16301 of 2017 2024:KER:70362
business activities. When Sri.Hamsa decided to stop his activities,
petitioner entered into Ext.P1 agreement with the said Sri.Hamsa
for using the electricity connection and also to occupy the
premises originally owned by her. Thereafter the petitioner was in
possession of both the premises.
3. On 22.03.2010, an inspection was carried out by Anti-
Power Theft Squad (APTS), and Ext.P2 is the Site Mahazar
prepared. It is to be straight away noticed that the said Site
Mahazar is in two parts. The first part of the Mahazar is with
reference to Consumer No.7706. The second part, starting from
internal page 7 of the Mahazar, is with reference to the connection
having Consumer No.15961. In the said Mahazar, in the latter
portion, with reference to the connection having Consumer
No.15961, it was recorded by the inspecting team that ice-cream
freezing equipment (four in number) was seen installed and
working with the electricity drawn from the connection 15961. At
the same time, it is further noticed that no ice cream
manufacturing activity is being carried out on the said premises.
The details of the four numbers of freezers seen installed in the
premises having Consumer No.15961 are also recorded in the
Mahazar.
WP(C)No.16301 of 2017 2024:KER:70362
4. On the basis of the details gathered through Ext.P2
Mahazar, a provisional invoice at Ext.P3 was issued by the 2 nd
respondent herein. Essentially, the 2nd respondent in Ext.P3 has
sought to demand penal charges as regards Consumer No.15961
applying the commercial tariff under LT-VII-A.
5. The petitioner filed a detailed objection at Ext.P4 to the
provisional bill. The resultant order is produced as Ext.P5, issued
by the 2nd respondent. In Ext.P5 order, the allegation raised
against the petitioner is in connection with the theft of energy with
reference to Consumer No.15961 referred to above. There is also
a reference to an earlier instance of alleged theft carried out by
the petitioner. Ext.P5 is followed by the final bill at Ext.P6.
6. The petitioner preferred Ext.P7 appeal against the said
order before the third respondent, which stood disposed of by
Ext.P8. In Ext.P8, there is a positive finding to the effect that
insofar as consumption recorded in the meter has been already
used for assessment purposes, the revision ought to be limited to
the fixed charge portion alone. Ext.P8 concludes by directing the
2nd respondent to issue consequential orders.
7. Consequently, the 2nd respondent issued Ext.P9 revised
bill. In the said order at Ext.P9 also, though there was a direction
WP(C)No.16301 of 2017 2024:KER:70362
to limit the proceedings taken to 3.2KW, penal charges have been
demanded as regards 4KW. Further, penal current consumption
charges are also seen demanded in Ext.P9.
8. It is in the above circumstances that the captioned writ
petition is filed by the petitioner. A detailed counter affidavit dated
30.06.2017 is filed by respondents 1 to 3, essentially seeking to
sustain the impugned proceedings.
9. I have heard Sri.J.Julian Xavier, the learned counsel for
the petitioner and Smt.Keerthy Johnson, appearing on behalf of
Sri.S.Nirmal, the learned Standing Counsel for the Kerala State
Electricity Board.
10. Sri.J.Julian Xavier, the learned counsel for the
petitioner would point out as under:
(i) The entire proceedings taken against the petitioner is
on the allegation that the petitioner had utilized the
connection, Consumer No.15961, for a commercial
purpose. He points out that the said assumption by the
respondents is incorrect.
(ii) With reference to Ext.P1, the learned counsel for the
petitioner points out that the petitioner has used the
premises having Consumer No.15961 only for storing
WP(C)No.16301 of 2017 2024:KER:70362
purposes of the ice creams manufactured in the
premises having Consumer No.7706, which is also an
industrial activity, not amounting to a commercial
activity.
(iii) The learned counsel for the petitioner further points out
that, assuming that any proceedings can be taken
against the petitioner, going by the ultimate findings in
Ext.P8 appellate order, that ought to have been limited
to 3.2KW alone, that too only as regards fixed charges
and not as against the current consumption charges.
He also points out that there is a positive direction to
the effect that if the petitioner has made excess
payments, on account of the re-working to be carried
out, the same is also to be refunded to the petitioner.
Therefore, he points out that the idea and
understanding of the Appellate Authority was to limit
the additional bill only against the fixed charges.
11. Per contra, the learned Standing Counsel for the Kerala
State Electricity Board points out that:
(i) There was no manufacturing activity carried out in the
premises having Consumer No.15961 and only storing
WP(C)No.16301 of 2017 2024:KER:70362
was carried out. She points out that storing is only a
commercial activity, and therefore, the impugned
proceedings are perfectly justified.
(ii) The learned Standing Counsel for the Board refers to
paragraph 2 of the counter affidavit filed by the
respondents to contend that the petitioner is a habitual
offender and even on an earlier occasion, proceedings
were taken against the petitioner, which ultimately, has
resulted in his conviction by a criminal Court.
(iii) As regards the contention of the petitioner with
reference to the demand of charges at 4KW, the
learned Standing Counsel points out that going by the
provisions of the relevant Statutes, the actual
consumption of 3.2KW has to be rounded and that is
why Ext.P9 has been issued with reference to 4KW.
(iv) The learned Standing Counsel also invites the attention
of this Court to Ext.P8 to contend that going by the
findings in Ext.P8, even current charges can also be
taken for raising the bill and therefore, Ext.P9, to the
extent of demanding current charges is also correct.
12. I have considered the rival submissions as well as the
WP(C)No.16301 of 2017 2024:KER:70362
connected records.
13. Two issues arise for consideration in this writ petition.
The first issue is as regards the sustainability or otherwise of the
proceedings initiated against the petitioner, culminating in the
issue of Ext.P5 order, by the 2nd respondent, which ultimately
stood modified by the appellate order. The second issue is as
regards the correctness of the final proceedings at Ext.P9 issued
pursuant to the appellate order at Ext.P8.
14. Coming to the first issue to be considered in this case,
with reference to the findings in Ext.P5, it is to be straight away
noticed that the said proceedings are only as regards Consumer
No.15961. The entire proceedings have been taken on the basis
of the findings in the Mahazar at Ext.P2. As noticed earlier, Ext.P2
Mahazar specifically recorded the finding that in the premises
having Consumer No.15961, the inspecting team has only found
four ice-cream freezers being kept and connected to the electricity
connection. According to the respondents, the said activity is a
commercial activity.
15. Admittedly, the main activity of the petitioner, is being
carried out in the premises having electricity connection with
Consumer No.7706. The main activity of the petitioner is the
WP(C)No.16301 of 2017 2024:KER:70362
manufacturing of ice creams-an industrial activity. The ice cream,
so manufactured, is to be stored somewhere. The petitioner might
have been storing the said ice creams in the premises having
Consumer No.7706 originally. Later, when the occupant of the
neighbouring premises stopped his activities, the petitioner
started to occupy the said premises having Consumer No.15961,
only for the purpose of storing the ice cream manufactured in the
premises, having Consumer No.7706. In other words, the activity
carried out in the premises having connection with Consumer
No.15961 is just storing the ice cream manufactured in the
premises having connection with Consumer No.7706. The said
activity also, in my opinion, is nothing but an industrial activity.
There is no finding to the effect that the petitioner was carrying
on any commercial activity like the sale of the ice cream from the
premises having connection with Consumer No.15961, seen
recorded in Ext.P2 Site Mahazar. In the absence of such a finding
in Ext.P2, the conclusion of the 2nd respondent in Ext.P5 to the
effect that the petitioner was carrying on a commercial activity in
the premises having connection with Consumer No.15961, cannot
be accepted.
16. Similarly, in Ext.P5, there is a reference to an earlier
WP(C)No.16301 of 2017 2024:KER:70362
instance where the petitioner is alleged to have carried out some
theft of electricity, as against which proceedings were taken
culminating in the conviction of the petitioner. The learned counsel
for the petitioner points out that the said proceedings are the
subject matter of a Criminal Revision Petition before this Court,
which is pending consideration. However, it is to be noted that the
present proceedings taken through Ext.P5 is only with reference
to the Mahazar at Ext.P2. Assuming for the sake of argument that
an earlier instance of theft is pointed out, that by itself will not
permit the 2nd respondent to take proceedings against the
petitioner on the basis of Ext.P2 Site Mahazar, unless and until a
clear case of theft is being established against the petitioner.
17. In such circumstances, I do not find any reason to
sustain the proceedings at Ext.P5. Therefore, the appellate order
issued at Ext.P8 also cannot be sustained. The findings in Ext.P8
appellate order with reference to the requirement to limit the
additional bill to the fixed charge portion also need not be
considered any further, in view of the finding to the effect that
Ext.P5 cannot be sustained.
18. In view of the above findings, the challenge as regards
Ext.P9 also need not be considered any further.
WP(C)No.16301 of 2017 2024:KER:70362
In the result, I allow this writ petition, setting aside Ext.P5
issued by the 2nd respondent and Ext.P8 issued by the 3rd
respondent.
Sd/-
HARISANKAR V. MENON,
JUDGE
Skk//18.09.2024
WP(C)No.16301 of 2017 2024:KER:70362
APPENDIX OF WP(C) NO.16301 OF 2017
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AGREEMENT BETWEEN THE
PETITIONER AND SRI HAMSA DATED
08.10.2001
EXHIBIT P2 TRUE COPY OF THE MAHAZER DATED
22.03.2010
EXHIBIT P3 TRUE COPY OF THE PROVISIONAL BILL DATED
27.03.2010
EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED
20.08.2016
EXHIBIT P5 TRUE COPY OF THE FINAL ORDER DATED
15.11.2016
EXHIBIT P6 TRUE COPY OF THE FINAL BILL
EXHIBIT P7 TRUE COPY OF THE APPEAL DATED 20.12.2016
FILED BY THE PETITIONER BEFORE THE 3RD
RESPONDENT
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 21.02.2017
ISSUED BY THE 3RD RESPONDENT
EXHIBIT P9 TRUE COPY OF THE REVISED DEMAND DATED
03.05.2017 ISSUED BY THE 2ND RESPONDENT
TO THE PETITIONER
RESPONDENTS' EXHIBITS:
EXHIBIT R1(A) MAHAZAR DATED 27.03.2010
