Catholic Reformation Literature Society Hosanna Mount, Edamattom vs Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WA.No. 52 of 2011() ------------------AGAINST THE JUDGEMENT/ORDER IN WPC.598/2011 Dated 07/01/2011 .................... APPELLANT(S): / PETITIONER -------------- CATHOLIC REFORMATION LITERATURE SOCIETY HOSANNA MOUNT, EDAMATTOM P.O.,PIN-686588 REP.BY ITS DIRETOR JOSEPH PULIKUNNEL BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): / RESPONDENTS --------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM,THIRUVANANTHAPURAM REP.BY ITS SECRETARY 2. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION,PALA 3. THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, PAIKA 4. ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, PAIKA 5. THE CONSUMER GRIEVANCE REDRESSAL FOURM POWER HOUSE ROAD, POWER HOUSE BUILDING, ERNAKULAM - MR.C.K.KARUNAKARAN, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.R.** ## C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------W.A. No.52 of 2011 --------------------------------Dated, this the 17[th] day of January, 2011 ## J U D G M E N T ## Ramachandran Nair, J. The question raised is whether the electricity bill raised after inspection, when unauthorised use was noticed, should be challenged before the appellate authority under Section 127 of the Electricity Act, 2003 (hereinafter referred to as the Act for short) or whether the aggrieved consumer can redress grievance by approaching the Consumer Grievance Redressal Forum (CGRF) constituted under the Kerala State Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2005 (hereinafter referred to as the Regulations for short) framed under Section 181(1) of the Act. 2. The appellant had two electricity connections both under LT-VI B tariff, which covers hostels, educational institutions run by charitable institutions etc. However, during an inspection held on 28/10/2010, the KSEB noticed that from one of the connections W.A.No.52/2011 -2- granted under tariff LT-VI B, the appellant has taken connection to buildings where IELTS coaching is given to students on chargeable basis and to a building run as a guest house providing accommodation to guests. Based on the allegation of unauthorised use, electricity bill was raised under Section 126(3) of the Act, against which statutory appeal is provided under Section 127 of the Act to the appellate authority, who is the Deputy Chief Engineer of the Electricity Board. The appellant instead filed a complaint before the CGRF and filed a Writ Petition in this Court for a mandamus to the CGRF to decide the matter and until then to stay all proceedings for recovery of the bill amount. The learned Single Judge felt that the appellant's remedy is to file statutory appeal and therefore, without deciding anything else on merits, the learned Single Judge disposed of the Writ Petition directing the appellant to file statutory appeal as provided under Section 127 of the Act before the appellant authority. This Writ Appeal is filed challenging the said judgment of the learned Single Judge for a declaration that against the disputed bill the appellant is entitled to maintain a complaint before the CGRF, the 5[th] respondent herein, and there is no need to file an appeal under Section 127 of the Act. W.A.No.52/2011 -3- 3. We have heard Shri.Julian Xavier, learned counsel appearing for the appellant and Shri.C.K.Karunakaran, learned Standing Counsel appearing for the KSEB. 4. Learned counsel for the appellant has relied on the Single Bench judgment of this Court in Jose Francis v. KSEB, reported in 2009(4) KLT 465, wherein this Court held that disputes on classification for tariff and bill raised on allegation of unauthorised use of power could be disputed and settled before the CGRF above referred. However, learned Standing Counsel appearing for the KSEB referred to definition clause (2)(f)(vii) of the Regulations, which prohibits maintainability of complaints against electricity bills raised under Section 126(3) of the Act alleging unauthorised use. The question to be considered is whether electricity bill raised after inspection and on finding alleged unauthorised use of power is to be challenged before the appellate authority under Section 127 of the Act or whether it can be settled by the CGRF created under the Regulations. If the bill raised under Section 126 based on allegation of unauthorised use of power falls within the exception clause 2(f)(vii) of the Regulations, then certainly, the CGRF does not have the authority and the appellant's W.A.No.52/2011 -4- remedy is only to file an appeal before the statutory authority under Section 127 of the Act. In order to examine the matter, the relevant statutory provisions are extracted hereunder:- “ Section 126 of the Act. Assessment.- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. ---- ---- Explanation.For the purpose of this section,- ---(a) (b) “unauthorised use of electricity” means the usage of electricity- ---------(i) ---------(ii) ---------(iii) (iv) for the purpose other than for which the usage of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorised.” “Section 127(1) of the Act:- “Appeal to appellate authority - (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as W.A.No.52/2011 -5- may be specified by the State Commission, to an appellate authority as may be prescribed.” - “Clause 2(f) of the Regulations :- - 2(f) ”Complaint” means any grievance made by a complainant in writing on:- - (i) defect or deficiency in electricity service provided by the licensee; - (ii) unfair or restrictive trade practices of licensee in providing electricity services; - (iii) charging of a price in excess of the price fixed by the Commission for supply of electricity and allied services; - (iv) errors in billing; - (v) erroneous disconnection of supply; - (vi) electricity services which are unsafe or hazardous to public life in contravention of the provisions of any law or rule in force; or - (vii) any other grievance connected with the supply of electricity by the licensee except those related to the following:(1) unauthorised use of electricity as provided under Section 126 of the Act; - --------- - (2) - (3) ---------” 5. After hearing both sides and on going through the above provisions, we are of the view that remedy available to the appellant against the disputed bill is only an appeal before the statutory authority under Section 127 and no complaint is maintainable before the CGRF, particularly by virtue of the prohibition contained W.A.No.52/2011 -6- in Clause 2(f)(vii)(1) of the Regulations. It should be noted that Section 126(1) authorises the Assessing Officer to raise a bill after inspection if unauthorised use of electricity by the consumer is found by the Department. The definition of “unauthorised use” under clause (b) of the Explanation to Sub Section (6) of Section 126 specifically covers use of electricity for purposes other than those for which it is permitted or authorised. Tariff classification like domestic, industrial, commercial etc. are prescribed based on use of power by the consumer. When connection is given to the consumer specifying the tariff classification, then the consumer is bound to use the power only for the purposes for which the connection is given, under which tariff the consumer is liable for payment of power charges. The specific allegation of the Assessing Officer in this case is that the nature of use of power by the appellant in the building where coaching is given to the students for preparing for IELTS examination and in the building used as guest house, are unauthorised use of power, in as much as such uses can be termed as commercial purposes falling under LT VII A tariff whereas connection taken is under LT-VI B tariff. Even though learned counsel for the appellant contended that the allegation of misuse or W.A.No.52/2011 -7- unauthorised use is without any basis, we do not think there is any need for us to consider this question because what we are called upon to decide is only the Forum before which the appellant can redress their grievances against the bill raised after inspection. As already pointed out, the allegation based on which the bill is raised after inspection by the Assessing Officer squarely answers the description of “Unauthorised Use” as defined under Section 126(6) (b) of the Act and clause 2(f)(vii)(i) of the Regulations. It is specifically provided under Section 127(1) of the Act that an appeal is maintainable against any proceedings or bills raised under Section 126 of the Act. 6. The next question to be considered is whether the CGRF also has concurrent jurisdiction, and if so, which Authority should be allowed to decide the matter. In this case, we find force in the contention of the learned Standing Counsel for the KSEB that CGRF has no jurisdiction because under sub clause (vii)(1) of Clause 2(f) of the Regulations, electricity bill raised by the licensee against a consumer for unauthorised use of electricity under Section 126 of the Act is specifically excluded from the scope of “complaint”. On the other hand, electricity bill raised based on allegation of W.A.No.52/2011 -8- unauthorised uses, which include use of power for the purposes other than mentioned under the tariff under which connection is given, is an order specifically appealable under section 127 of the Act, which is excluded from the scope of “complaint” covered by Regulations. So much so, in our view, when the Regulations specifically exclude the jurisdiction of the CGRF on all disputes pertaining to bills raised under Section 126 of the Act on allegation of unauthorised use the only remedy available to the appellant against such bill is to file an appeal under Section 127 before the statutory authority. In view of this finding, we disapprove the view expressed in the reported judgment above referred and uphold the judgment of the learned Single Judge impugned in this appeal. It is submitted by the learned counsel for the appellant before us that 50% of the disputed bill amount is paid and there is threat of disconnection. Since time for filing appeal is over, and in view of the pendency of this Writ Appeal, we feel further time should be granted to the appellant to approach the appellate authority under Section 127 of the Act. We, therefore, grant two weeks' time to the appellant from the date of receipt of a copy of this judgment to file an appeal under Section 127 of the Act before the statutory ## W.A.No.52/2011 -9- authority, who is bound to decide as to whether there is unauthorised use of power by the appellant as alleged and grant appropriate relief to the appellant. Since the tariff applicable to the appellant is the issue raised, we direct the appellate authority to decide that matter on merits within one month from the date of filing the appeal as above. Recovery of balance bill amount will also remain stayed for a period of two months from now, and thereafter recovery will be based on orders of the appellate authority in appeal. This Writ Appeal is disposed of as above. Sd/- ## (C.N.RAMACHANDRAN NAIR, JUDGE) Sd/- (BHABANI PRASAD RAY, JUDGE) jg