ALEX, S/O ALFRED v. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, CHAVAKKAD; DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, THRISSUR; THE KERALA STATE ELECTRICITY BOARD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **MONDAY, THE 15TH DAY OF OCTOBER 2012/23RD ASWINA 1934** **WP(C).No. 19094 of 2012 (J) ---------------------------** **PETITIONER(S):** **-------------------------** **ALEX, AGED 30 YEARS, S/O.ALFRED, CHEERAN HOUSE, KOTTAPPADY P.O., THRISSUR DISTRICT.** **BY ADV. SRI.SURAJ.S** ## **RESPONDENT(S):** **----------------------------** **1. THE ASSISTANT ENGINEER, ELECTRICAL SECTION,** **CHAVAKKAD, PIN -680 506.** **2. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE,** **THRISSUR, PIN- 680 001.** **3. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN -695 001.** **R1 TO R3 BY ADV. SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.19094/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXT.P-1 A TRUE COPY OF THE MEMORANDUM WITH ACKNOWLEDGE OF THE DISTRICT INDUSTRIES CENTRE, THRISSUR.** - **EXT.P-2 A TRUE COPY OF THE SITE MAHAZAR PREPARED BY THE SUB ENGINEER, ELECTRICAL SECTION, CHAVAKKAD.** - **EXT.P2(a) A TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P2** - **EXT.P-3 A TRUE COPY OF THE NOTICE DATED 22-6-2012 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXT.P3(a) A TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P3** - **EXT.P-4 A TRUE COPY OF THE CALCULATION STATEMENT ISSUED BY THE 1ST RESPONDENT.** - **EXT.P-5 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 27-6-2012.** - **EXT.P-6 A TRUE COPY OF THE ORDER DATED 23-7-2012 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P-7 A TRUE COPY OF THE NOTICE DATED 23-7-2012 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P7(a) A TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P7** - **EXT.P-8 A TRUE COPY OF THE APPLICATION FOR GETTING ELECTRICAL CONNECTION.** ## **RESPONDENTS' EXHIBITS & ANNEXURES:** **ANNEX R1(A) A TRUE COPY OF THE APPLICATION FOR ELECTRICAL CONNECTION SUBMITTED BY THE PETITIONER TO THE ELECTRICITY BOARD.** ## **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 19094 of 2012 --------------------------------Dated this the 15th day of October, 2012 ## JUDGMENT The petitioner is running an establishment engaged in packing of Coconut Oil and other Oils for retail sale. Petitioner is provided with an electric connection in the said establishment, which is coming within the jurisdiction of the 1[st] respondent. The Anti Power Theft Squad (APTS) conducted an inspection at the premises on 8.6.2012. Ext.P4 provisional assessment was made against the petitioner based on the allegation that the petitioner is using electrical energy not for any industrial purpose. The assessment was made for the period from 6/09 to 5/12 treating the petitioner as a consumer coming under the LT VIIA tariff. Differential amount after crediting payments already made under LT IV was demanded. Penalty was also imposed under Section 126 on the basis of an allegation of unauthorised additional load connected, to the extent of 2 KW. 2. The petitioner objected the provisional assessment. The 1[st] respondent, after considering the objections, issued WP(C). 19094 /2012 2 Ext.P6 order. Ext. P7 is the consequential demand issued. Eventhough the petitioner had approached the 1[st] respondent himself, it was informed that he will be at liberty to approach the appellate authority, if aggrieved. In this writ petition the petitioner is challenging Exts.P6 and P7. 3. Heard; counsel for the petitioner and Standing Counsel appearing for respondents. Imposition of penalty under Section 126 of Electricity Act, 2003 based on detection of unauthorised additional load to the extent of 2KW, is not disputed. Challenge is against the demand based on the change of tariff. 4. Petitioner had produced Ext.P1 registration granted to the establishment by the Industries Department of the State Government. Exhibit R1(a) is the copy of the application submitted for electric connection, which will indicate that the purpose for which the connection was sought for is mentioned as 'industry'. Contention is that the connection was provided after being convinced of the fact that the petitioner's establishment is an 'industry' coming under LT IV tariff. Learned counsel for the petitioner had pointed out that, all the endorsements contained in WP(C). 19094 /2012 3 Ext.R1 (a) will reveal that the connection under LT IV was alloted only after due inspection and after being convinced about eligibility of the petitioner to get the connection under LT IV tariff. It is further contended that, even assuming that the nature of consumption is one coming within the purview of LT VIIA, the respondents are not entitled to recover the difference of electricity charges with retrospective effect. 5. A calculation statement attached along with Ext.P4 would reveal that, the difference in fixed charges and current charges alone was demanded, based on the change in tariff. No penalty at twice the rate as contemplated under Section 126 was imposed. Therefore, question to be considered is as to whether the respondents are entitled to realise the difference if it is found that the petitioner was not eligible to be charged under LT IV tariff. Reference is made to the relevant portions in the “schedule of tariff for retail supply”, which came into force on 0101-2010. It provides that, units carrying filtering, packing and associated activities using imported oil products from outside,will come only under LT VII A tariff. The petitioner is not in a position WP(C). 19094 /2012 4 to dispute the above aspect. Merely because the connection was happened to be alloted under a different tariff the respondents cannot be prevented from rectifying the mistake and from demanding the difference in payment of electricity charges for the consumption already availed. Since the petitioner is not legally entitled to enjoy the consumption under LT IV he is bound to pay charges legally due to the respondent Board. 6. Learned counsel for the petitioner raised a further contention that the respondents cannot recover the arrears after a period of two years from the respective dates on which the amount became first due, because such amounts were not shown continuously as arrears in the subsequent bills issued. Admittedly the demand was raised for the first time as per Ext.P3, during 6/12. Therefore arrears due from 6/10 alone is recoverable, is the contention. The above contention is raised based on the provisions contained in Section 56(2) of the Electricity Act, 2003 and Regulation 18(8) of the Kerala Electricity Supply Code, 2005. (hereinafter referred to as the 'Act' and 'Code' respectively). Hence the petitioner seeks direction to the WP(C). 19094 /2012 5 extent of limiting the demand from 6/10 to 5/12. 7. Meeting the above contention, learned Standing Counsel for respondents contended that, the sums demanded under Exts. P3 and P4 became first due only when those notices were issued. Therefore there is no bar of limitation for recovering such amount, is the contention. In support of the above contention he had placed reliance on a decision of this court in **Sunderdas P. vs. KSEB and another 2009(1) KHC 945.** Referring to section 56(2) this court observed that the word 'due' should bear a meaning that, it is upon issuance of the bill that the amount became due. Referring to clause 37(5) of the 'KSEB Terms and Conditions of Supply, 2005' the learned Judge observed that, meaning of amount becomes due and first due should be linked with issuance of the bill and such issuance can either be on the basis of a review or otherwise with respect to readings taken on a regular basis. In that case the mistake was recovered regarding application of proper 'multiplication factor' and a revised bill was issued when it was discovered. Regulation 37 (5) enables the Board to recover any amount remained unpaid from the WP(C). 19094 /2012 6 consumer, by issuing a bill. 8. But I am of the view that clause 37(5) is also subject to the restrictions contained in Section 56(2) and Regulation 18(8). Going by the wordings contained in the said provisions it is evident that the restriction is on recovering amounts which has first became due before 2 years, if it was not shown continuously as arrears in the bills issued thereafter. If it is construed that the Board can recover amounts due, which was omitted to be collected due to their mistake, at any point of time even after the lapse of so many years, the restriction imposed under Section 56(2) or Regulation 18(8) will become redundant. The application of the period of limitation is further restricted by a condition that if the arrears was demanded continuously in all the bills issued thereafter, it can be recovered. This itself indicates that the intention of the legislature is to put a period of limitation with respect to recovery, if there is failure on the part of the Board in demanding the arrears within the reasonable period of two years. I am of the opinion that the amount of fixed charges and current charges payable by a consumer will WP(C). 19094 /2012 7 become due when the regular monthly bills are issued by the authorities of the Board. Hence the amounts demanded under Ext.P4 with respect to the months from 6/2009 to 5/2010 is not sustainable, because the demand was raised for the first time only during 6/2012. Going by Section 56(2) and Regulation 18 (8), the arrears due for two years preceding the demand alone can be recovered. 9. Under the above mentioned circumstances while declining the challenges raised against Exts.P4, P6 and P7 I direct the 1[st] respondent to revise the demand by excluding charges due for the period from 6/09 to 5/10. The 1[st] respondent will issue revised demand to the petitioner on the basis of the above directions within a period of one week from the date of receipt of a copy of this judgment. 10. Learned counsel for the petitioner made an appeal to this court to permit payment of the arrears in easy instalments. It is pointed out that an amount of Rs.50,000/- had already been paid, out of the total amount demanded. The prayer is opposed by the Standing Counsel appearing for the respondents. However WP(C). 19094 /2012 8 taking note of the factual circumstances prevailing, I permit the petitioner to make payment of the balance amount in four equal monthly instalments. So the revised demand should specify the respective due dates for payment, permitting 4 monthly instalments. It is made clear that on failure to make payment of any one of the instalments, the facility granted will not be allowable and the respondents will be entitled to recover the entire arrears due from the petitioner by resorting to coercive methods permissible under law. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 19094 /2012 9 WP(C). 19094 /2012 10