Kerala High Court
Mascom Steel (India) Pvt. Ltd vs The Assistant Engineer on 27 June, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 27TH DAY OF JUNE 2025/6TH ASHADHA, 1947
W.A.NO.833 OF 2024
AGAINST THE JUDGMENT DATED 20.05.2024 IN W.P(C).NO.29139 OF 2023
OF HIGH COURT OF KERALA
APPELLANT(S)/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 ADV.SRI.N.JAMES KOSHY
BY ADV.SRI.ALEX ABRAHAM
RESPONDENT(S)/RESPONDENT:
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
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5 THE CHIEF ELECTRICAL INSPECTOR,
GOVERNMENT OF KERALA, OFFICE OF THE CHIEF ELECTRICAL
INSPECTOR, HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM, PIN - 695001
6 THE ASSISTANT EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL
SUB DIVISION, KIZHAKKAMBALAM, ERNAKULAM DISTRICT,
PIN - 683562
BY SRI.B. PREMOD, STANDING COUNSEL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
26.06.2025, THE COURT ON 27.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Dr. A.K. Jayasankaran Nambiar, J.
The writ petitioner in W.P(C).No.29139 of 2023 is the appellant
before us aggrieved by the judgment dated 20.05.2024 of a learned
Single Judge dismissing its writ petition.
2. The brief facts necessary for a disposal of this writ appeal
are as follows:
The appellant is a private limited company having its registered
office at Erumathala P.O., Aluva, Ernakulam District. It is engaged in the
manufacture of steel bars of different sizes. In connection with its
manufacturing activities, it is also registered as a consumer of electricity
with the Kerala State Electricity Board Limited [KSEBL] which is the
licensee under the Electricity Act in the area where the appellant
functions. While the energy requirements of the appellant company were
of limited nature upto 2017, in that year, the appellant decided to
upgrade its manufacturing activities, and towards that end applied for an
enhancement of its contracted load from 1000 KVA to 2500 KVA with
immediate effect. The application dated 06.01.2018 filed by the
appellant, which is produced as Annexure R1(a) by the respondent Board,
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reveals that the engineers of the electrical section of the licensee had,
while recommending the case of the appellant for sanction, also indicated
that in as much as some of the work in connection with the 66 KV lines
would be 'time consuming', the consumer could be 'provided the load
temporarily' by using the existing 11 KV line. The administrative
sanction for the work was accorded by Ext.P5 communication dated
12.04.2018, and the appellant was asked to remit Rs.21,02,500/- towards
costs for the works to be undertaken. The appellant accordingly remitted
the said amount and thereafter, the work on upgradation of the
transformer and installation of other equipment in the premises of the
appellant was approved by the Electrical Inspectorate which issued
Ext.P9 letter dated 22.05.2018 sanctioning the energisation of the
transformer, and connected electrical equipment's in the premises. The
annexure to Ext.P9 letter suggests that the connected load that was
approved by the electrical inspectorate was 2500 KVA. These facts are
also borne out by Ext.P10 communication dated 23.05.2018 of the Asst.
Engineer, KSEBL to the Asst. Executive Engineer wherein he seeks a
direction from the latter for permitting the appellant to connect the load
to the 'newly installed 2500 KVA transformer through the existing
metering system'. It is therefore clear that by June 2018, the appellant
had applied for and obtained the necessary sanction for the use of a
connected load upto 2500 KVA through an upgraded transformer that
was equipped to handle the said load.
3. When the appellant thereafter raised a complaint with the
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Minister for Electricity as regards the delay in execution of the remaining
works for which payment had been made, the KSEBL vide Ext.P13 letter
dated 01.11.2018 informed the appellant that an NOC from the
Panchayath was required in order to grant additional power supply since
the Panchayat had informed them that it had taken a decision to refuse a
licence to the appellant. The appellant therefore challenged the decision
taken by the Panchayat before the Tribunal for Local Self Government
Institutions, and by its order dated 29.11.2018 the tribunal found the
decision of the Panchayat to be legally unsustainable. Immediately
thereafter, the KSEBL vide its letter dated 07.12.2018 [Ext.P17]
approached the Additional District Magistrate to seek permission to draw
dedicated AB Cables through an alternate path, than the one originally
proposed, taking note of disputes that had been raised by some persons
in the locality. In the said letter, the KSEBL also acknowledges that it had
received a payment of Rs.21,02,500/- from the appellant for drawing the
dedicated ABC feeder. The ADM granted permission to KSEBL vide
Ext.P18 order dated 15.01.2019. The appellant thereafter paid the
energisation charges for the enhanced load and its unit was energised
with the enhanced contract demand on 09.04.2019.
4. It is the case of the appellant that, while the excess
contracted load to the unit had been duly sanctioned, and the unit with
the enhanced load and upgraded transformer, was energised on
09.04.2019, the only work that remained to be completed was the
drawing of the dedicated ABC feeder. Pending this, however, for over 48
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months from 09.05.2019 to 17.05.2023, the appellant was served with
bills for energy charges that clearly showed that whenever the appellant
exceeded the contract demand [that was still shown as 1000 KVA], it was
billed for the maximum demand, over and above the contracted demand,
at 1.5 times the normal rate. Some of the sample bills raised on the
appellant during the aforesaid period were produced as Exts.P20 to P31
in the writ petition. While so, the Anti Power Theft Squad of KSEBL
visited the premises of the appellant on 15.07.2023 and found that the
connected load in the appellant's premises was 3570.200 KW while its
originally sanctioned contract demand and connected load were 1000
KVA and 792.15 KW respectively. A provisional assessment order was
therefore issued to the appellant proposing to treat 2778 KW [3570 -
792] as Unauthorised Connected Load and demand a differential amount
to the tune of Rs.4,18,21,242/- from it towards energy charges. Although
the appellant preferred its objections to the said proposal, the same was
confirmed by Ext.P36 final order dated 09.08.2023. It was the said final
order that was impugned by the appellant in the writ petition
aforementioned.
5. The learned Single Judge who considered the writ petition
found that the issue raised by the appellant in the writ petition required
an adjudication on facts and hence the appellant had to be relegated to
the statutory remedy of filing an appeal against Ext.P36 order before the
appellate authority. The writ petition was accordingly dismissed without
interfering with the impugned order.
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6. In the appeal before us, it is the submission of Sri.James
Koshy, the learned counsel for the appellant, that the learned Single
Judge ought not to have relegated the appellant to its alternate remedy
under the statute because pursuing that alternate remedy was not
efficacious for the appellant. This was because it had to remit 50% of the
confirmed demand, amounting to approximately Rs.2 Crore, as a
precondition for maintaining the appeal before the appellate authority. It
is his further submission, on merits, that the finding of the assessing
officer, based on the mahasar drawn up by the APTS, that there was an
excess connected load of 2778 KW in the premises, ignores the fact that
the authorised connected load of the appellant was 2500 KW, and not 792
KW as alleged. Pointing to Regulation 101 of the Supply Code, he
contends that since the KSEBL knew from 2019 onwards that the
maximum demand availed by the appellant was in excess of its contracted
load, as they had billed the excess load at 1.5 times the normal rate, it
was obliged in terms of the Regulation to issue a notice of thirty days to
the appellant requiring it to submit within the notice period, an
application for enhancement of the contract demand. KSEBL apparently
did not resort to the said procedure because it was aware that the
appellant had been sanctioned an additional contract load of 1500 KVA
over and above the originally sanctioned 1000 KVA. That being the case,
the KSEBL could not have found that there was an unauthorised
connected load of 2778 KW at the appellant's premises on the date of
inspection.
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7. Per contra, it is the submission of Sri.Premod, the learned
Standing Counsel for the KSEBL that the impugned judgment of the
learned Single Judge does not require to be interfered with. He points
out that the appellant has an effective alternate remedy under the
Statute and in so far as an adjudication on facts is warranted, the writ
court rightly chose not to interfere with the final order passed against the
appellant in the writ proceedings. Alternatively, he contends that the
additional contract demand of 1500KVA was never sanctioned to the
appellant, nor did the appellant apply for a regularisation of the
additional connected load at any point in time before the visit of the APTS
to its premises. As the entire work with regard to the sanction of
additional contract demand to the appellant was not completed, the
appellant could not have obtained a service connection in respect of the
enhanced contract demand.
8. We have considered the rival submissions and perused the
pleadings and the relevant statutory provisions. At the very outset, we
might observe that we find ourselves in disagreement with the approach
of the learned single judge in dismissing the writ petition solely on the
ground of existence of a statutory alternate remedy. While it is trite that
the exercise of power under Article 226 of the Constitution is entirely
discretionary, and that this court would not ordinarily entertain a writ
petition in circumstances where an effective adjudication on facts is
better undertaken before the statutory authorities entrusted with
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adjudicatory functions, the writ court must take note of the economic
hurdles placed in the way of the litigant while pursuing the statutory
alternate remedy. In the instant case, the learned single judge ought to
have considered, at least prima facie, the justification offered by the
KSEBL for the exorbitant demand made on the appellant. This was
required since the statutory provision for appeal is hedged in with a
condition that requires an appellant to remit 50% of the demand
confirmed against it as a condition for availing the appellate remedy. In
the event of a wholly unjustifiable and exorbitant demand being made
against a consumer, the statutory appellate remedy would be nothing but
a teasing illusion since not many consumers would be in a position to pay
the mandatory pre-deposit for maintaining an appeal. It is for this reason
that we have chosen to consider the merits of the appellant's case in this
writ appeal.
9. From the facts available before us, we find that there was
an application preferred by the appellant for enhancement of the contract
demand to 2500 KVA as early as on 06.01.2018 and that was acted upon
by the KSEBL to sanction the additional load and upgrade the
transformer for the purpose. The energisation of the unit with the
additional contract load also took place on 09.04.2019. Thus, a part of the
work of upgradation of the system, to facilitate the additional contract
load, was completed in 2019 itself and all that remained was for the
dedicated ABC feeder to be drawn and the formal application and
agreement for the additional service connection to be processed and
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sanctioned by the KSEBL. The endorsements made by the engineers of
KSEBL on Ext.R1(a) application dated 06.01.2018 clearly indicate that it
was understood by all concerned that the drawing of additional lines for
supplying the electricity at a higher load would take time and hence the
appellant could be permitted to avail the additional load 'temporarily' by
connecting the additional load to the 'newly installed 2500 KVA
transformer through the existing metering system'. Thereafter, for almost
48 months the KSEBL raised bills on the appellant clearly noticing a
maximum demand in excess of the original contracted load, and charging
it at 1.5 times the normal rate for such excess demand. It is significant
that at that stage, the KSEBL did not require the appellant to make an
application for an enhancement of the contract demand as mandated in
Regulation 101 of the Electricity Supply Code, presumably because it
already knew of the sanction of the additional load to the appellant by
then. KSEBL had also collected the charges [approximately Rs.22 Lakhs]
for carrying out the necessary works for the enhancement of the contract
load.
10. Against the backdrop of the above facts, we find it difficult
to accept the finding of the assessing officer in Ext.P36 order that on the
date of the inspection by the APTS, there was an unauthorised connected
load, to the extent of 2778 KW [3570 KW - 792 KW], at the appellant's
premises. In our view, the contracted load of the appellant had to be
taken as 2500 KVA and in that view of the matter, the 'unauthorised'
connected load could only have been 1070 KW [3570 KW - 2500 KW].
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Since the contracted load had been enhanced to 2500 KVA in the
meanwhile, and the transformer had been upgraded to support that
higher load, increasing the connected load upto the limit of the enhanced
contracted load would not have caused any technical issues for the
licensee [KSEBL] so as to invoke the penal provisions under the
Electricity Act against the appellant. It follows that it is only in respect of
the above 1070 KW that the appellant can be seen as having resorted to
an 'unauthorised use of electricity', within the meaning of that phrase
under Explanation (b)(ii) to Section 126 of the Electricity Act.
11. We accordingly allow this appeal, by setting aside the
impugned judgment of the learned single judge and allowing the writ
petition by quashing Ext.P36 final order impugned therein. We remand
the matter to the assessing authority to recompute the demand against
the appellant herein after hearing it and by treating only 1070 KW as the
unauthorised connected load, and by computing the differential energy
charges payable by the appellant for a period of 12 months prior to the
date of inspection, on that basis. A fresh final order as above shall be
passed by the assessing officer within a period of one month from the
date of receipt of a copy of this judgment, and served on the appellant
shortly thereafter.
Taking note of the submission of the learned counsel for the
appellant that electricity supply to the premises has been disconnected
and if the connection is not restored, it will seriously prejudice the
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interests of the appellant as well as the workers in its unit who depend on
the functioning of the unit for their livelihood, we direct that on the
appellant paying the re-determined energy charges, on being intimated of
the same by the KSEBL, the respondents shall forthwith restore
electricity connection to the appellant's premises. The right of the
appellant to challenge the fresh final order on merits before the statutory
appellate authority, on all other issues, is also left open.
The Writ Appeal is allowed as above.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
P.M.MANOJ
JUDGE
prp/
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PETITIONER'S ANNEXURES: NIL.
RESPONDENT'S ANNEXURES:
ANNEXURE R1(a) The true copy of the Power Allocation
Application submitted by the appellant
consumer on 05.01.2018 along with a covering
letter dated 03.01.2018
ANNEXURE R1(b) The true copy of the letter addressed to the
Assistant Executive Engineer dated 06.03.2018
ANNEXURE R1(d) The true copy of the sanction for
energisation issued to the consumer by the
Chief Electrical Inspector on 22.05.2018
ANNEXURE R1 (f) The true copy of the letter dated 08.08.2019
issued by the Assistant Executive Engineer
Kizhakkambalam
ANNEXURE R1(g) The true copy of the communication issued by
the Deputy Chief Engineer on 22.08.2023
ANNEXURE R1(e) True copy of the energisation approval issued
by the Electrical Inspector on 08.04.2019
ANNEXURE R1(h) The true copy of the application submitted
seeking enhancement of contract load on
08.09.2023
ANNEXURE R1(j) The true copy of the communication issued by
the Deputy Chief Engineer on 28.12.2023
ANNEXURE R1(k) The true copy of the communication issued on
30.01.2024
ANNEXURE R1(c) The true copy of the power allocation
sanction issued on 12.04.2018
ANNEXURE R1(i) The true copy of the communication issued on
30.09.2023 by the Deputy Chief Engineer
ANNEXURE R1(l) The true copy of the communication issued by
the Assistant Engineer, Electrical Section,
Edathala DTD. 12.03.2024
//TRUE COPY//
P.S. TO JUDGE
