IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WA.No. 68 of 2001(B) -------------------- AGAINST THE JUDGEMENT IN OP.26341/2000 Dated 12/10/2000 .................... APPELLANT/RESPONDENTS 1 TO 3: ----------- 1. THE KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4. 2. THE CHIEF ENGINEER, ELECTRICAL (DISTRIBUTION SOUTH), K.S.F.E.BOARD, THIRUVANANTHAPURAM. 3. THE ASST. EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.F.E. BOARD, OACHIRA, KRISHNAPURAM P.O., PIN – 690 533. BY ADV. SRI.R.K.VENU NAYAR, SC, KSEB SRI.A.SUDHI VASUDEVAN, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENTS/PETITIONER & RESPONDENTS 4 & 5: ------------- 1. S.SASIDHARAN, KUTTI AYYATH, KOTTAMPALLY, OACHIRA, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SRI.P.K.SOMAN 2. THE ELECTRICAL INSPECTOR, KOLLAM. 3. THE CHIEF ELECTRICAL INSPECTOR, THIRUVANANTHAPURAM. BY ADV. SRI.N.RAGHURAJ FOR R1 SMT.K.AMMINIKUTTY FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON 13/06/2008 DELIVERED THE FOLLOWING: WA.No. 68 of 2001(B) ORDER ON C.M.P.NO.145/2001 IN W.A.NO.68/2001 CLOSED SD/- H.L.DATTU, CHIEF JUSTICE SD/- T.R.RAMACHANDRAN NAIR, JUDGE 13/06/2008 \\TRUE COPY// H.L.Dattu, C.J. & T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.68 of 2001 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of June, 2008. JUDGMENT Ramachandran Nair, J. Aggrieved by the judgment in O.P.No.26341/2000, the appellants, viz. the Kerala State Electricity Board (hereinafter referred to as 'the Board')and others have filed this writ appeal. 2. The first respondent filed the writ petition seeking to quash Exts.P4 and P6 and for the issuance of a writ of mandamus directing respondents 1 to 3 to give electricity connection to the petitioner's auditorium as approved by the 4th respondent Electrical Inspector in Exts.P1 and P1(a) approval. Learned Single Judge, after analysing the issue in the light of the various provisions of the Indian Electricity Act and the relevant rules, allowed the writ petition. 3. The writ petitioner constructed an air conditioned auditorium at Oachira by name “Regency Hall”. For working the air conditioning unit, the petitioner decided to have a generator unit having capacity of 200 KVA. He sought for regular electricity supply from the Board only for the purpose of lights and fans having a connected load of 22.64 KW with a standby generator unit having capacity of 25 KVA and accordingly a scheme was submitted for approval. The Electrical Inspector, Kollam, as per Ext.P1, granted sanction for the entire scheme under Section 30 of the Indian Electricity Act and Rules 47A and 135 of Indian Electricity Rules. Thereafter, the petitioner applied to the third appellant herein for electric connection for the lights and fans and for permission for operation of the generator as per separate applications Exts.P2 & P3. After various correspondences, the writ petitioner was given a reply by Ext.P6 stating that the application is not acceptable, as the power allocation of lights and fans alone WA 68/2001 -2- without including the generator, cannot be granted. 4. We heard learned Senior Standing Counsel for the Board, Shri C.K. Karunakaran and Shri N. Reghuraj, learned counsel for the first respondent. Learned Senior Standing Counsel contended that the view taken by the learned Single Judge is not correct, as the Board cannot be compelled to supply electricity by granting service connection for part of the installation while the consumer operates a different unit through generator. Reliance is also placed on clause 15(i) of the Conditions of Supply of Electrical Energy framed under Section 79(j) of the Electricity Supply Act. 5. The stand taken by the appellants in the counter affidavit filed by the writ petitioner in a nutshell was that the power allocation has to be given for the entire load including the load of generator. Ext.R3(a) circular issued by the Board is relied on to support the said stand. 6. Learned Single Judge, on a detailed analysis of the relevant provisions of the Indian Electricity Act, 1910 and Rules 47A and 135 of the Indian Electricity Rules, 1956, held that merely for enabling the Electricity Board to collect fixed charges every month, the Chief Engineer cannot, by the circular, act against the provisions contained in Rules 47A and 135 of the Rules. 7. For easy reference, Rule 47A is extracted below: “Where any consumer or occupier installs a generating plant, he shall give a thirty days' notice of his intention to commission the plant to the supplier as well as the Inspector.” The writ petitioner was granted sanction by the Electrical Inspector invoking his power under Section 30 of the Indian Electricity Act and Rules 47A and 135 of the Indian Electricity Rules, 1956, for the energisation of 200KVA DG Set, 25 KVA DG set and connected electrics. Once the Electrical Inspector has sanctioned the same as per Ext.P1, the Board cannot refuse to act upon it merely because of Ext.R3(a) circular, as WA 68/2001 -3- it is well settled that the express provisions of a Statute or Rules cannot be whittled down by the issuance of a circular. Having satisfied that the writ petitioner has complied with the legal formalities, it was sanctioned by the competent authority, viz. the Electrical Inspector. The petitioner was right in approaching the Electricity Board as per Exts.P2 and P3, for further steps in the matter. A reading of Rule 47A shows that a consumer is entitled to instal a generating plant and for that purpose he has to approach the Electrical Inspector in that regard. The writ petitioner, after completing the formalities under the above rules, was therefore perfectly justified in approaching the Board for further actions in the matter. The same cannot be refused on the basis of the apprehension that there may be misuse of energy. The Board and its officials are well empowered by the provisions of the Act and the Rules framed from time to time, to find out any misuse of energy. Since the petitioner has already obtained sanction as per Ext.P1, the Board is not entitled to collect the monthly fixed charges by including the power which may be generated by the generator, as rightly found by the learned Single Judge. 8. Learned Single Judge has also relied upon Rule 135 of the Rules which is in the following terms: “135. Supply and use of energy by non-licensees and others.-- Where any person other than a non-licensee is supplied with energy by a non-licensee or other person or has his premises for the time being connected to the conductors or plant of a non-licensee or other person, or himself generates energy and uses such energy or part thereof, such person shall be deemed to be a consumer for the purposes of Rules 9, 10, 29 to 33 (inclusive), 45 to 70 (inclusive), Rules 87 and 142 and the non-licensee or other person shall be subject to all the liabilities imposed on a licensee by those rules.” In fact, the said rule will show that it will enable a person to generate energy for his use through the generators and the rule expressly declares that such person shall also be deemed to be the consumer for the purpose of various rules. Going by the scheme that WA 68/2001 -4- is put forth by the petitioner, the power used for the air conditioner is directly generated by the generator and the same has no connection with the system which is used for the lights and fans. He had shown them separately in the respective applications. 9. We will now consider the argument raised by the learned Standing Counsel for the appellants relying upon clause 15(i) of the Conditions of Supply of Electrical energy. For easy reference, the said clause is extracted below: “(i) L.T. and H.T. Consumers are not ordinarily entitled for more than one service at a premises unless supply points of different voltages are required for special loads connected there, in which case the Board/Inspector (in the case of HT) will analyse the problem in detail and after ensuring that there is no likelihood of any mix up of different services, may sanction such services. If a consumer has more than one service (not in one and the same premises) of his own he will be required to execute separate agreements for each service. For all purposes each service will be treated as independent ones.” A reading of the above clause shows that it governs a situation where Low Tension and High Tension consumers seek more than one service at one premises through the Board. Learned Standing Counsel invited our attention to that part of the clause stating that “if a consumer has more than one service (not in one and the same premises) of his own he will be required to execute separate agreements” It is accordingly contended that even if more than one service is required by the petitioner, it can only be through the Board alone. 10. On a reading of the above clause, it is seen that the same has no application to the situation herein. The fact situation herein is different. Herein, the petitioner seeks for electricity connection through the Board only for the lights and fans for a total connected load of 22.64 KW. As far as air conditioners are concerned, he has already obtained sanction from the Electrical Inspector for operating the said connection through his own generator system. There is no prohibition under clause 15 of the Conditions of Supply of Electrical Energy, for the same. Even otherwise in view of the express WA 68/2001 -5- provisions contained in Rules 47A and 135, Clause 15 will not apply also. 11. The appellants, therefore, cannot insist compliance with the provisions of Ext.R3(a) circular in view of the statutory prescriptions provided by Rules 47A and 135 of the Rules. Therefore, we find no ground to interfere with the judgment under appeal. The writ appeal is dismissed. No costs. H.L.Dattu, Chief Justice. T.R. Ramachandran Nair, Judge. kav/ WA 68/2001 -6- H.L.Dattu, C.J. & T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - W.A.No.68 of 2001 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 10th June, 2008.