IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 WP(C).No. 36392 of 2010(Y) -------------------------- PETITIONER(S): --------------- MUHAMMED ASHRAF, PROPRIETOR, WOOD HOUSE @ JOLLY'S CUTTING AND PLAINING CENTRE, 50/1184, THYKKOOTTATHIL, RAILWAY STATION ROAD, EDAPPALLY - 682 024. BY ADV. SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004, REPRESENTED BY ITS SECRETARY. 2. ASSISTANT ENGINEER, K.S.E BOARD, ELECTRICAL SECTION, EDAPPALLY, KOCHI - 682 024. 3. APTS, KSE BOARD, THIRUVANANTHAPURAM - 695 004. BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.36392 of 2010 ------------------------------- Dated this the 21st day of January, 2011 J U D G M E N T The petitioner is a consumer of electrical energy. He is running a carpentry unit by name 'Wood House & Joll's Cutting & Plaining Centre' . The Anti Power Theft Squad of the Kerala State Electricity Board inspected the business premises of the petitioner on 6.10.2010. On inspection, it was found that the petitioner had unauthorisedly extended the connection to another building which is situated 25 meters away from the premises to which electricity connection was given. The connected load was also found to be in excess of the sanctioned limit. Thereupon, a provisional invoice was issued on 7.10.2010. After the petitioner filed his objections, Ext.P9 final order was passed under section 126 of the Electricity Act upholding the provisional assessment of Rs.7,30,000/- made in Ext.P7. Hence this writ petition challenging Ext.P9. The Assistant Engineer who passed Ext.P9 order has held as follows:- “On perusal of the matter in the site mahazar, objection petition, hearing conducted, it is concluded that: The Consumer had submitted an application for shifting the electric connection to another building on 19.4.2006. Since the LT IV connection cannot be shifted, the application kept pending. Moreover the whole industry have not been shifted but in both the buildings works are being carried on. W.P.(C) No.36392 of 2010 2 The consumer admits that he extended the electric connection to building no.50/1184. The consumer argues that the portable equipments are used only on work sites. But it is understood that the machines are used not only for outside works, but also in the premises too. The consumer says that he is liable to pay only the fixed charges. The amount demanded is penal charges for unauthorised Extension for one year. The consumer argues that penalty demanded for one year is not sustainable as the extension was made recently. But no proof has been submitted for this. Moreover on 19.4.2006 he requested to shift the connection to another building. Hence the argument is not valid. O R D E R The provisional assessment bill issued to the consumer on 07.10.10 cannot be revised as per the above findings. Deputy Chief Engineer, Electrical Circle, Ernakulam is the appellate authority regarding this assessment. The consumer can approach before Dy.C.E. For further proceedings.” 2. The Assistant Engineer has in Ext.P9 order found that the petitioner is carrying on the business activity in both buildings, that the connection has been unauthorisedly extended to another building and that his application for shifting the electricity connection is also pending. The Assistant Engineer has also noticed in Ext.P9 order than an appeal lies from the order to the Deputy Chief Engineer. However, the petitioner has not chosen to file an appeal in W.P.(C) No.36392 of 2010 3 terms of section 127 of the Electricity Act, 2003. Relying on the decision of the Apex Court in Government of Andhra Pradesh & others v. Smt.P.Laxmi Devi (AIR 2008 SC 1640), the learned counsel for the petitioner contended that though the provision regarding pre-deposit may be constitutionally valid, the stipulation that the appellant will have to pay an amount equal to 50% of the disputed amount along with the appeal, is an onerous condition, and therefore, the consumer can invoke the jurisdiction of this Court under Article 226 of the Constitution of India and challenge the final assessment made by the Assistant Engineer. 3. It is evident from Ext.P6 mahazar prepared at the time of inspection that the petitioner had unauthorisedly extended the electricity connection to a building other than the premises to which connection was given. The Assistant Engineer also found that the connected load was in excess of the sanctioned limit. He also noticed that the industrial activity was being carried on in the premises to which the connection was given as also in a shed to which the unauthorised extension was taken. In Ext.P8 reply submitted by the petitioner, he had virtually admitted the fact that he has taken an unauthorised extension. His explanation was that W.P.(C) No.36392 of 2010 4 though he tried to run the business in the shed to which the connection was unauthorisedly extended, he found it to be uneconomical. He had also stated that he is in need of electrical energy in that building. The petitioner had thus virtually conceded the fact that he had taken unauthorised extension to another building. Though he had a case that in the building where he was originally running the business was let out to a tenant by his brother to whom it was allotted in the family partition, the details of the said entrustment are not forthcoming. In such circumstances, the finding in Ext.P9 that there was an unauthorised extension of the electricity connection cannot be assailed. As regards the petitioner's application for shifting the electricity connection to the shed to which the unauthorised extension was taken, in view of regulation 21(5) of the KSEB Terms and Conditions of Supply, 2005, such shifting cannot be permitted. The petitioner should have in my opinion ascertained the legal position and taken steps to apply for a fresh connection. I therefore find no merit in the plea raised by the petitioner that he was forced to take an unauthorised extension as his request to shift the connection to another building was not attended to by the Board. 4. In Government of Andhra Pradesh & others v. W.P.(C) No.36392 of 2010 5 Smt.P.Laxmi Devi (supra) after upholding the validity of section 47A of the Indian Stamp Act as amended by Andra Pradesh Act 8 of 1998, which stipulated that the officer making reference under the said provision, as regards the stamp duty payable on an instrument, need not make a reference unless an amount equal to fifty percent of the deficit stamp duty arrived at by him is deposited by the party concerned, the Apex Court held that where an exorbitant demand is made by the registering officer, it is open to the party aggrieved to file a writ petition challenging the exorbitant demand made by the registering officer under the proviso to section 47A alleging that the determination made is arbitrary and/or based on extraneous considerations. In the instant case, the petitioner has not moved the appellate authority. In any case, as in the case of estimation of stamp duty payable under the Stamp Act, there is no scope for any arbitrary exercise of power by the Assistant Engineer. The Assistant Engineer does not make a determination of the energy charges payable by the consumer according to his whims and fancies. He goes by the connected load, the meter reading and the tariff in force. Hence the principle laid down by the Apex Court in Government of Andhra Pradesh & others v. Smt.P.Laxmi Devi W.P.(C) No.36392 of 2010 6 (supra) has no application to the facts of the instant case. Further, a learned single Judge of this Court has in W.P.(C) No.16142 of 2009 upheld the validity of section 127(3) of the Indian Electricity Act, 2003. A Division Bench of this Court has in W.A.No.1261 of 2009 held that in order to maintain an appeal, the consumer will have to deposit 50% of the disputed amount. I, therefore, find no merit in the plea of the petitioner that the condition regarding payment of 50% of amount demanded is an onerous condition and therefore the appellate remedy is not meaningful. The writ petition fails and is accordingly dismissed without prejudice to the right of the petitioner to challenge Ext.P9 in other appropriate proceedings and his right to apply for a new connection in respect of the shed to which the unauthorised extension was taken. P.N. RAVINDRAN, JUDGE. nj.