IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 WP(C).No. 24084 of 2011(I) -------------------------- PETITIONER(S): --------------- S.M.KHAN .,MANAGING PARTNER, M/S.NANA AUTO FUELS, EAST FORT, THIRUVANANTHAPURAM,PIN-695023 BY ADV. SRI.K.P.RAJEEVAN RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VYDHUTHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM-595004 2. ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, FORT,THIRUVANANTHAPURAM-595004 3. DEPUTY CHIEF ENGINEER, ELECATRICAL CIRCLE (URBAN) KERALA STATE ELECTRICITY BOARD, FORT,THIRUVANANTHAPURAM-595004 4. STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT POWER DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 BY GOVT. PLEADER SRI.M.MOHAMMED SHAFI BY SC FOR KSEB SRI.T.R.RAJAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO. 24084 of 2011 EXT.P1 PHOTOCOPY OF THE MAHAZAR DATED 27.1.2009 EXT.P2 PHOTOCOPY OF THE BILL DATED 9.2.2009 FOR RS.72,431/- ISSUED BY THE BOARD EXT.P3 PHOTOCOPY OF THE CASH RECEIPT NO.1567 DATED 5.3.2009 FOR RS.37,008/- EXT.P4 PHOTOCOPY OF THE ORDER DATED 18.6.2011 OF THE CONSUMER GRIEVANCE FORUM. EXT.P5 PHOTOCOPY OF THE PROVISIONAL ASSESSMENT ORDER DATED 19.7.2011 OF THE SECOND RESPONDENT. EXT.P6 PHOTOCOPY OF THE OBJECTION DATED 25.7.2011 FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P7 PHOTOCOPY OF THE FINAL ASSESSMENT ORDER DATED 18.8.2011 OF THE SECOND RESPONDENT. EXT.P8 PHOTOCOPY OF THE CIRCULAR DATED 20.12.2008 OF THE BOARD. EXT.P9 PHOTOCOPY OF THE APPEAL TO THE APPELLATE AUTHORITY RULES, 2004 AND PUBLISHED ON 16.4.2004 EXT.P10PHOTOCOPY OF THE NOTIFICATION SRO.NO.250/2005 DATED 9.3.2005 EXT.P11 PHOTOCOPY OF THE APPEAL TO THE APPELLATE RULES 2004 PUBLISHED ON 7.9.2006. //TRUE COPY// P.A. TO JUDGE. P.N. RAVINDRAN, J. ------------------------------- W.P(C) No. 24084 of 2011 ------------------------------- Dated this the 5th day of September, 2011 J U D G M E N T Exts.P5 order dated 19.7.2011 issued by the Assessing Officer, Ext.P7 order dated 18.8.2011 issued by the Assistant Engineer, Kerala State Electricity Board, Electrical Section, Fort, Power House Building, Thiruvananthapuram under section 126 of the Indian Electricity Act, 2003, and Ext.P10 notification issued by the State Government designating the Deputy Chief Engineers of the Electrical Circles concerned as Appellate Authority for the purpose of consideration of the appeal under section 127 of the Indian Electricity Act are under challenge in this writ petition. The petitioner also prays for an order directing the State Government to issue a notification as contemplated in the appeal to the Appellate Authority Rules, 2004 so as to file an appeal under section 127 of the Indian Electricity Act, 2003. 2. The petitioner is a consumer of electrical energy. His business premises was inspected by a team of officers of the Kerala State Electricity Board lead by Sub Engineer of Electrical Section, Thiruvananthapuram on 27.1.2009. Thereafter, Ext.P1 mahazar was prepared in the presence of the Assistant Engineer, Electrical Section, W.P.(C) No.24084 of 2011 2 Fort, Thiruvananthapuram on 27.1.2009 itself. On inspection, it was noticed that as against the permissible connected load of 5000 Watts, the petitioner was using 20.305 kilo watts. After inspection, Ext.P2 provisional bill dated 9.2.2009 was issued demanding the sum of Rs.72,431/-. The petitioner thereafter remitted 50% of the amount demanded and filed an appeal before the third respondent, Deputy Chief Engineer. As no decision was taken thereon, the petitioner filed a complaint as O.P.No.557 of 2010 before the Consumer Grievance Redressal Forum (South), Kottarakkara. The said complaint was closed by order passed on 3.12.2010 with the following observations:- “In view of the statutory appeal now pending before the Appellate authority, the procedural impropriety or irregularities and any injustice meted out to the consumer, if any, are to be examined by the Appellate Authority. Hence we do not think it just and proper to entertain the very same grievance of the petitioner on merits at this stage by this forum. Therefore these issues are open for the consideration of the Appellate Authority. However, the petitioner will be at liberty to approach this forum again, if the circumstances of the case so warrants.” Such an order happened to be passed for the reason that the petitioner had filed an appeal under section 127 of the Indian Electricity Act, 2003 before the Deputy Chief Engineer remitting 50% W.P.(C) No.24084 of 2011 3 of the amount assessed. The petitioner thereafter filed O.P.No.627 of 2011 before the Consumer Grievance Redressal Forum (South) Kottarakkara contending that he has no occasion to file an appeal under section 127 of the Indian Electricity Act, 2003 for want of a provisional assessment order. The Consumer Grievance Redressal Forum (South) Kottarakkara examined the petition filed by the petitioner and passed Ext.P4 order dated 18.6.2011 with notice to the Assistant Executive Engineer, Electricial Sub Division, Fort. By Ext.P4 order, the Consumer Grievance Redressal Forum (South) Kottarakkara held that the procedure adopted in section 126 of the Indian Electricity Act was not followed before the demand was raised. It accordingly set aside Ext.P2 provisional bill dated 9.2.2009 and directed as follows:- 1. The impugned bill dtd.9/2/2009, for Rs.72431/- is hereby quashed. 2. The amounts collected towards the above demand shall be treated as advance, which shall be adjusted in the petitioner's immediate future current charges. 3. The opposite party, KSEB, shall be free to initiate fresh proceedings under Section 126 of the Act, observing the rules and regulation, if it so desires. 4. The fresh demand if raised shall carry its interest and surcharge, if any, from its due date & last date only. W.P.(C) No.24084 of 2011 4 5. The petitioner is at liberty to raise his grievances on the procedural impropriety, administrative lapses etc. if any, before Secretary, KSEB. 6. No order on costs. 3. Pursuant thereto, the Assistant Engineer, Electrical Section, Fort, Thiruvananthapuram issued Ext.P5 provisional order under section 126 of the Indian Electricity Act, 2003 demanding the payment of the sum of Rs.81,277/-. The petitioner thereupon filed Ext.P6 objection dated 25.7.2011. The Assistant Engineer heard the petitioner on 6.8.2011 and thereafter passed Ext.P7 order dated 18.8.2011 modifying the provisional assessment and demanding payment of Rs.49,355/-. Along with Ext.P7, a statement showing the computation was also enclosed. The petitioner was also informed that by that order, if he is aggrieved, he can challenge it in appeal before the Deputy Chief Engineer, Electrical Circule (Urban), Thiruvananthapuram under section 127 of the Indian Electricity Act, 2003 on deposit of the 50% of the amount assessed. Hence this writ petition challenging Ext.P5 provisional order and Ext.P7 final order and also Ext.P10 notification issued by the State Government authorising the Deputy Chief Engineer to hear the appeal filed under W.P.(C) No.24084 of 2011 5 section 127 of the Indian Electricity Act, 2003. Relying on Ext.P11 rules framed by the Central Government, it is contended that the appellate authority to be constituted under section 127 of the Indian Electricity Act cannot be directly related to the affairs of the territorial jurisdiction of the licencee or supplier of the energy and therefore Ext.P10 authorising the Deputy Chief Engineer of the concerned section as appellate authority is liable to be set aside. Regardidng the levy of penal charges and Ext.P7 order, relying on Ext.P8 Circular issued by the Board, it is contended that the rated capacity of plug points cannot be taken into account for determining the connected load and the connected load of the equipments alone can be taken as connected load. 4. I have considered the rival submissions made at the Bar by the learned counsel on both sides. From a reading of Ext.P8 order, it is evident that the said Circular relates only to rating of connected load in case of rectifiers and stabilizers. In the case of stabilizers, the Board has stated that stabilizers need not be treated as connected load and the load of equipments connected to stabilizer need be considered as connected load. It is further clarified that the capacity of stabilizers shall not be treated as connected load whereas W.P.(C) No.24084 of 2011 6 the load of equipments connected through stabilizers shall be considered as connected load. There is nothing in Ext.P8 Circular to the effect that whereever an equipment is connected to a plug point, the capacity of the plug point should not be taken into account for determining the connected load. The petitioner cannot therefore in my opinion rely on Ext.P8 to contend that the unauthorised connected load was improperly reckoned or the provisions of the Circular has not been complied with. That apart, the petitioner has no case that he had not used the equipment referred to in Ext.P1 mahazar or that the connected load of the various equipments has not been correctly taken note of. Such being the situation, as the assessing authority has scaled down the demand from Rs.81,277/- to Rs.49,355/-, I find no merit or substance in the contention of the petitioner that the final assessment order is in any way infirm. Such being the situation, the challenge to Ext.P9 notification cannot also be sustained. Even if the petitioner were to file an appeal before any other appellate authority to be nominated by the Government, as Ext.P7 is not in any way invalid or infirm, no purpose will be served by moving the appellate authority. 5. Though the learned counsel for the petitioner W.P.(C) No.24084 of 2011 7 contended that the Assistant Executive Engineer, Electrical Section, Thiruvallam was not competent to act as the assessing officer in view of the stipulations in S.R.O.No.250 of 2005, the petitioner did not raise such a contention for the past more than 3 years either before the assessing authority himself or before the Consumer Grievance Redressal Forum, South, Kottarakkara. It is only in the instant writ petition that for the first time the contention that the Assistant Engineer of the concerned section did not inspect the premises has been set out. Such a plea according to me is highly belated and there is no merit in the writ petition. The writ petition fails and it is accordingly dismissed. P.N. RAVINDRAN, JUDGE. nj. P.N.RAVINDRAN, J. -------------------------------------- W.P.(C) No.24084 of 2011 JUDGMENT Dated:- 5th September, 2011 --------------------------------------