Assistant Executive Engineer, Electrical Sub Division, KSEB Ltd., Kodakara v. Arun R. Chandran and Consumer Grievance Redressal Forum Central Region

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **WEDNESDAY, THE 22[nd] DAY OF JULY 2024 / 31ST ASHADHA, 1946 WP(C) NO. 21392 OF 2017** ## **PETITIONER/S:** **ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, KSE BOARD LTD., KODAKARA** **BY ADVS. SRI.P.A.AHAMED, SC, KERALA STATE ELECTRI NIRMAL.S** ## **RESPONDENT/S:** - **1 ARUN R. CHANDRAN INDUS TOWERS LIMTITED, 8TH FLOOR, VANAKARATH TOWERS, PALARIVATTOM, COCHIN 25.** **2 THE CONSUMER GRIEVANCE REDRESSAL FORUM CENTRAL REGION, 220KV SUB STATION COMPOUND, HMT COLONY PO, KALAMASSERY 683 503.** **BY ADVS. SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SRI.PHILIP T.VARGHESE SRI.RENI JOHN SRI.THOMAS T.VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 10.07.2024, THE COURT ON 22.07.2024 DELIVERED THE FOLLOWING:** WP(C) NO. 21392 OF 2017 **==> picture [31 x 8] intentionally omitted <==** **==> picture [40 x 13] intentionally omitted <==** ## JUDGMENT The short question to be decided in this writ petition is whether the impugned Ext.P5 order is correct in holding that Ext.P1 short assessment bill raised by the Kerala State Electricity Board (KSEB) for the period from April, 2010, to March, 2011 is barred by limitation under Section 56(2) of the Electricity Act, 2003 (for short, “the Act”). 2. The writ petition is filed by the KSEB challenging Ext.P5 order passed by the second respondent - the Consumer Grievance Redressal Forum. The case projected in the writ petition is that the premises of the first respondent, Sri.Arun R. Chandran (consumer), was inspected by the Anti Power Theft Squad (APTS) of the KSEB during March, 2010, and found that the first respondent consumer was using unauthorized additional load of 4 kw in addition to the registered connected load of 14 kw. The penal bill issued to the first respondent was paid without any objection. The unauthorized additional load was regularized by the first respondent only in March, 2011. Thereafter, Ext.P1 short WP(C) NO. 21392 OF 2017 **==> picture [31 x 8] intentionally omitted <==** assessment bill for penal charges for the subsequent months for the unauthorized additional load from April, 2010 to March, 2011, was issued to the first respondent on 17.08.2015 on the basis of an audit of the Electric Section, Kodakara, conducted on 03.09.2012. Though the first respondent filed an objection before the Assistant Engineer, it was rejected confirming Ext.P1. Challenging this, the first respondent filed a petition before the second respondent and as per Ext.P5 order, the second respondent cancelled Ext.P1 short assessment bill, holding that the said demand was raised after four years without showing the same as arrears recoverable in the subsequent bills. Aggrieved by Ext.P5, the KSEB has come up before this Court with the writ petition. 3. Heard the learned Standing Counsel for the petitioner/KSEB as well as the learned counsel for the first respondent. 4. According to the learned Standing Counsel appearing for the KSEB, the finding of the second respondent that the issuance of Ext.P1 short assessment bill for the period from April, 2010 to March, 2011 is not legally correct, WP(C) NO. 21392 OF 2017 **==> picture [31 x 8] intentionally omitted <==** is wrong and unsustainable. It is submitted that Ext.P1 bill for the unauthorized load was first time issued only on 17.08.2015 and therefore, the same is not hit by Section 56(2) of the Act. It is further pointed out that as per Section 134(1) of the Kerala Electricity Supply Code, 2014, if the licensee establishes either by review or otherwise, that it has undercharged the consumer, the licensee may recover the amount so undercharged from the consumer. Hence, according to the learned Standing Counsel, the KSEB is entitled to recover the said amount. To substantiate the arguments, the learned Standing Counsel relied on a decision of the Division Bench of this Court in Manager, Mar Athanasios College v. KSEB & others [2014:KER:27167]. It is submitted that the delay occurred in raising Ext.P1 short assessment bill is only due to administrative reasons, however, the first respondent is duty bound to pay the said charges since an unauthorized load was detected in the premises. Further, it was pointed out that the date on which the amount became first due is 17.08.2015, i.e., the date on which the bill was first time issued to the first respondent. WP(C) NO. 21392 OF 2017 **==> picture [31 x 8] intentionally omitted <==** 5. The learned counsel for the first respondent submitted that the APTS inspected the premises in March, 2010, and the said unauthorized additional load was regularized in March, 2011. It was further submitted that the penal charges demanded by the KSEB were paid by the first respondent without raising any objection and the first respondent was not aware of the fact that any further amount was due from him. According to the learned counsel, the demand is clearly out of time and the KSEB, while issuing Ext.P1 short assessment bill, did not comply with the procedures contemplated under Section 126 of the Act, which specify that before finalizing the bill, a provisional assessment order has to be served on the consumer, and the consumer has to be permitted to file objections against the provisional bill, and after affording a reasonable opportunity of hearing to such person, a final order of assessment has to be passed within 30 days from the date of service of notice of such order of provisional assessment. 6. I have given my thoughtful consideration to the arguments advanced on both sides. Section 56 of the Act deals WP(C) NO. 21392 OF 2017 **==> picture [31 x 8] intentionally omitted <==** with disconnection of supply in default of payment. In the facts of the case, it is relevant to refer to Section 56(2) of the Act, which reads as follows; “Sec.56: Disconnection of supply in default of payment.- (1) xxxx (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.” It is an admitted fact that APTS conducted an inspection in the premises of the first respondent during March, 2010. It is further admitted that the penal bill, which was issued by the KSEB, was remitted by the first respondent without raising any objection. On a perusal of Ext.P3 inspection report dated 16.03.2010, it is seen that the Assistant Executive Engineer of APTS, Regional Unit, Thrissur, has noted as point No.(3) that, “to continue the assessment till regularization”. It is also an admitted fact that the first respondent regularized the unauthorized additional load in March, 2011. Hence, the KSEB was duty bound to issue penal bills for the subsequent WP(C) NO. 21392 OF 2017 **==> picture [31 x 8] intentionally omitted <==** months till regularization of the unauthorized additional load, which admittedly was not done. The defect was noticed during the audit of Electric Section, Kodakara on 03.09.2012, i.e., almost after two years, which was brought to the notice of the KSEB. However, Ext.P1 bill for continued use of unauthorized additional load for the period from April, 2010, till March, 2011, for a sum of 1,35,907/- was admittedly₹ issued to the first respondent on 17.08.2015. Administrative reasons are stated to have contributed to the delay in raising Ext.P1 short assessment bill. Section 56(2) of the Act stipulates that no sum due from any consumer shall be recoverable after a period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for the electricity supplied. Here, the question to be decided is, the date on which such sum became first due. 7. The APTS, while issuing the inspection report on 16.03.2010, had noted to continue the assessment till regularization. Thus, the KSEB ought to have continued assessment till March, 2011, since the regularization of the WP(C) NO. 21392 OF 2017 **==> picture [31 x 8] intentionally omitted <==** unauthorized additional load was done only in March, 2011. So, the short assessment in respect of the period from April, 2010, till March, 2011, ought to have been done for every succeeding month till March, 2011. Thus, the amount became due in respect of the respective months till March, 2011; and hence, the sum for the period from April, 2010, to March, 2011 became due when the unauthorized additional load was regularized. Moreover, as could be seen from Ext.P3 inspection report, directions were given to the concerned officers to continue assessment till regularization. However, the defect of non-demand of the penal charges for the unauthorised additional load was detected by the audit unit on 03.09.2012 and on the basis of the report of the audit unit, Ext.P1 short assessment bill was issued only on 17.08.2015, which is after a lapse of almost three years from 03.09.2012. The amount became due from April, 2010, to March, 2011. Merely because Ext.P1 short assessment bill was issued by the KSEB on 17.08.2015, that too, after more than four years, it cannot be treated as the date on which the sum became due. In this case, an unauthorized additional load was detected in an inspection conducted by the APTS, and WP(C) NO. 21392 OF 2017 **==> picture [31 x 8] intentionally omitted <==** accordingly, directions were also given to the concerned officers to continue assessment till regularization. It is nothing, but a clear lethargy on the part of the officers concerned during the relevant period, in not issuing penal bills for the subsequent months for the unauthorized additional load. It is true that the first respondent ought to have remitted the amount under the provisions of the Act. However, without issuing any provisional assessment order or without any demand within the prescribed period of two years, the consumer cannot be directed to remit the said amount. In this case, the date of detection of the defect by the audit unit cannot be taken as the date on which such sum first became due since Ext.P3 inspection report of the APTS was already there on 16.03.2010. The KSEB cannot take shelter under ‘administrative reasons’ and take years to issue a short assessment bill, which was solely due to the lethargy or inaction on the part of the officers concerned. The KSEB does not also have a case that the said sum has been shown continuously as recoverable as arrear of charges for the electricity supplied even after the audit inspection. Moreover, the procedures contemplated under Section 126 of the Act, WP(C) NO. 21392 OF 2017 **==> picture [37 x 8] intentionally omitted <==** which specify that before finalizing the bill, a provisional assessment order has to be served on the consumer, and the consumer has to be permitted to file objections against the provisional bill, and after affording a reasonable opportunity of hearing to such person, a final order of assessment has to be passed within 30 days from the date of service of notice of such order of provisional assessment, were not complied with while raising the impugned demand. 8. The judgment of this Court in Manager, Mar Athanasios College (supra) relied on by the KSEB is not relevant to the facts of the case on hand. In that case, the unauthorized additional load was not regularized and there was nothing on record to show the same and hence, it was found that the subsequent demands raised by the KSEB were authorized under Regulation 51 of the KSEB Terms and Conditions of Supply, 2005. It was also held that the subsequent demands were issued following the audit objection. Here, in this case, the consumer had regularized the unauthorized additional load in March, 2011; and hence, by no stretch of imagination, it can be held that the short WP(C) NO. 21392 OF 2017 **==> picture [37 x 8] intentionally omitted <==** assessment bill issued on 17.08.2015 was within time. Time and tide wait for no man. Though I have found that the delay in demanding penal charges for the unauthorized load occurred due to the inaction and lethargy on the part of the officers who were in charge at the relevant time, considering the fact that 13 years have elapsed after the inspection conducted by the APTS, I refrain from ordering any recovery action against those officers, but alert the officers of the KSEB to be more vigilant in their duty. 9. On a consideration of the entire facts of the case, I hold that the Ext.P1 short assessment bill dated 17.08.2015 issued by the KSEB was out of time and the petitioner/KSEB is not entitled to get any relief as prayed for. Accordingly, the writ petition is dismissed. ## Sd/- ## SHOBA ANNAMMA EAPEN ## JUDGE bka/- WP(C) NO. 21392 OF 2017 ..12.. ## **APPENDIX OF WP(C) 21392/2017** **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF BILL ISSUED TO THE 1ST RESPONDENT DATED 17.8.2015** **EXHIBIT P2 TRUE COPY OF DETAILS OF CALCULATION ISSUED TO 1ST RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE INSPECTION REPORT DATED 16.3.2010** **EXHIBIT P4 TRUE COPY OF THE MAHAZAR DATED 16.3.2010** **EXHIBIT P5 TRUE COPY OF ORDER NO. CGRF-CR/COMP. 20/2016-17/ 222 DATED 8.8.2016 OF THE 2ND RESPONDENT**