The Kerala State Electricity Board (KSEB) challenges Exhibit

P3 order of the Kerala State Electricity Appellate Authority ('the

Appellate Authority' for brevity) on the ground that its findings

regarding non-requirement of upgradation of the distribution system

or enhancement of voltage level, in spite of more than seven thousand

watts being noticed as the unauthorised load, is incorrect; and that

the order to the extent to which it confines the revision of assessment

at only twice the fixed charges, is contrary to Section 45(3) of the

Electricity Act ('the Act' for brevity).

2. I have examined the order impugned in this writ petition

namely Exhibit P3 and I am of the view that the issue relating to the

charging of tariff in the case of unauthorized loads, not obtained by

artificial means or in violation of the purpose for which it has been

granted, is covered by a bench judgment of this Court in Sulabha

Marketing (P) Ltd v. Kerala State Electricity Board ((2017) 4

KHC 563). The learned Standing Counsel for the KSEB,

Sri.K.Janardhana Shenoy, of course, says that this judgment is

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pending before the Hon'ble Supreme Court in a Special Leave Petition

and therefore, that this Court may await the orders of the Hon'ble

Court. As regards the factual finding in Exhibit P3 that no

upgradation of the distribution system or enhancement of voltage

level necessarily is concerned, the learned Standing Counsel says that

this was not properly considered by the Appellate Authority.

3. When I go through the impugned order, as also the

pleadings on record, I am afraid that I cannot find any specific

contention or challenge raised by the KSEB quad hoc the factual

situation as to whether the detected unauthorized load of 12030

Watts requires upgradation of the existing distribution system or

enhancement of the voltage level. The only contention urged in this

writ petition is that this additional load will 'over burden the

transformer and thus the distribution system' (sic). In the absence of

any such specific contention, I fail to understand how the KSEB can

assert that Exhibit P3 order is bad on that count, particularly since

this Court has already, in Sulabha Marketing (supra), answered

these issues against the petitioner.

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4. As regards the directions in Exhibit P3 to revise the

assessment at twice the rate for the fixed charges alone is concerned,

since a Division Bench of this Court has also concluded emphatically

in Sulabha Marketing (supra) that only double the fixed charges can

be charged, I am bound by the said judgment and I am also in

affirmation of the same. Hence, merely because an SLP against this

judgment is pending, it would be justified for this Court to avoid

decision on this writ petition, as has been now prayed for by the

standing counsel; particularly because, if the Hon'ble Supreme Court

finds otherwise, the KSEB may obtain recourse subject to their

Lordship's view in these cases.

In the afore circumstances, I dismiss this writ petition, leaving

liberty to the Kerala State Electricity Board to act as per the

directions of the Hon'ble Supreme Court, if any such orders are

passed in the Special Leave Petition.

Sd/-

Devan Ramachandran, Judge

tkv

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APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1

TRUE COPY OF THE PROVISIONAL ASSESSMENT

DATED 04.05.2017 ISSUED BY THE ASSESSING

OFFICER.

EXHIBIT P2

TRUE COPY OF THE FINAL ASSESSMENT ORDER

ISSUED BY THE PETITIONER DATED 02.07.2017.

EXHIBIT P3

TRUE COPY OF THE ORDER DATED 16.08.2017

PASSED IN APPEAL NO.146/2017 BY THE 2ND

RESPONDENT APPELLATE AUTHORITY.

/TRUE COPY/

P.S. TO JUDGE