Hotel Mariya v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **& THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 26TH DAY OF JUNE 2018 / 5TH ASHADHA, 1940** **WA.No. 792 of 2015 IN WPC. 17912/2007 -------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 17912/2007 of HIGH COURT OF KERALA DATED 21-08-2014** **APPELLANT(S)/RESPONDENTS 1 TO 3:** **-------------------------------** **1 KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.** **2 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, PALA.** **3 THE ASSISTANT ENGINEER, ANTI-POWER THEFT SQUAD, KOTTAYAM-12.** **BY ADVS.SRI.RAJU JOSEPH (SR.), SRI.JOSEPH ANTONY,** **SRI.K.T.PAULOSE, SC, KSEB** ## **RESPONDENT(S)/PETITIONER & RESPONDENT NO.4:** **------------------------------------------** **1. HOTEL MARIYA, REP. BY ITS PARTNER, MATHEW CYRIAC, VELLIAPPALLIL BUILDINGS, PALA, (RESIDING AT AIKKARA VEEDU, NEEZHURKARA, PULIYANNOOR, MUTHOLY PO).** **2. THE PRINCIPAL SECRETARY TO GOVERNMENT, POWER (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.JOSEPH T.JOHN** **R1 BY SRI.ABHISHEK KURIAN** **R2 BY SR. GOVERNMENT PLEADER SRI.RENIL ANTO** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2018, THE COURT ON 26-06-2018 DELIVERED THE FOLLOWING:** _**“C.R.”**_ ## K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------- W.A. No. 792 of 2015 ------------------------------------------Dated this the 26[th] day of June, 2018 ## J U D G M E N T ## Ashok Menon, J. The Kerala State Electricity Board and its officers are before us challenging the judgment of the learned Single Judge in W.P.(C) No.17912/2007. 2. The Writ Petition was filed by a partnership firm named 'Hotel Mariya'. The Kerala State Electricity Board (KSEB) had provided connection to the petitioner as consumer No.6964. The Anti-Power Theft Squad (APTS) conducted an inspection on 23-07-2003 and found that petitioner-Hotel was using unauthorised load over and above the connected load of 17 KW under LT VII A Tariff. Ext.P7 bill was issued demanding a sum of Rs.6,38,072/-, which included the penalty. The petitioner challenged the imposition of penalty by filing W.P.(C) No.26537/2003 on the ground that imposition of penalty was issued one year after the enforcement of the Electricity Act, 2003 _WA.792/2015_ 2 and hence the penalty can only be imposed under Section 126 of the Act. Ext.P7 was quashed by this Court vide judgment dated 18-12-2006 at Ext.P9 and directed the respondent-AEE to pass fresh orders after serving notice on the petitioner. After hearing, Ext.P10 order was passed. On re-consideration, the contention that Section 126 of the Act would apply was repelled in the light of Ext.P11 notification by the State Government. The petitioner therefore, once again approached this Court challenging Ext.P10 order as well as Ext.P12, the consequential demand. The learned Single Judge held that the law is settled with regard to legal proposition that penal effect by way of enactment can only be prospective. Because of the restriction contained under Article 20 of the Constitution, it was observed that the provisions of the Electricity Act, 2003 was brought into force with effect from the 'appointed day', which is 10-06-2003, operation of Section 126 of that Act from the said date onwards is explicit. It is stated that Ext.P11 declaration, which the State is entitled to issue by virtue of Section 172(d), was issued only on 23-08-2003. Hence, it is evident that Section 126 was in force at the time when the _WA.792/2015_ 3 unauthorised usage was detected by APTS. The learned Single Judge also relies on the decision of this Court in Pareeth v. Kerala State Electricity Board, (2014 (2) KLT 258) in support of his reasoning. Hence it was observed that the impugned proceeding needs to be interfered to the extent of revising the penalty bill in accordance with the provisions contained in Section 126. Accordingly, Exts.P10 and P12 were quashed and the 2[nd] respondent in the Writ Petition was directed to issue revised bill computing the penalty under Section 126, which stood in force as on the date of inspection. It was also made clear that no surcharge/interest will be leviable on the amount of penalty. But statutory interest will be leviable from the date stipulated for payment, if there is any default. 3. The learned Senior Counsel for the appellant submits that Regulations 42 and 43 issued under Section 79(J) of the Electricity (Supply) Act, 1948 deals with misuse of energy, theft of energy as well as manner of billing. The penalty in respect of theft of energy, abatement of theft or energy, malicious waste of energy, unauthorised supply of energy are made penalties under _WA.792/2015_ 4 Sections 39(2) to 49A of Electricity Act, 1910. Misuse of energy and theft of energy are not included among the penalties and there is no embargo under Article 20 of the Constitution and hence submits that the finding of the learned Single Judge that assessment for misuse of energy and theft of energy is also a penalty under Article 20, is not sustainable. It is further argued that Ext.P11 notification was issued invoking the powers of the State Government conferred under Section 172(d) of the Electricity Act, 2003. It confers power on the State Government to issue notification declaring that any or all the provisions contained in the Electricity Act, 2003 shall not apply in the State for a period not exceeding six months from the appointed day, as may be stipulated in the notification. The appointed date is 10-06-2003. The learned Senior Counsel argues that the power to issue notification with retrospective effect is inherent in the provision itself and therefore, the finding of the learned Single Judge is not sustainable. The learned Senior Counsel relies on the decision Shiv Dutt Rai Fateh Chand v. Union of India, AIR 1984 SC 1194 in support of his argument. The Honourable Supreme Court while _WA.792/2015_ 5 considering the validity of retrospectively applying the provisions in State Laws relating to imposition of penalty in respect of offences committed relating to Section 9 of the Central Sales Tax (Amendment) Act (103 of 1976), held that the word 'penalty' used in Article 20(1) cannot be construed as a 'penalty' levied under the Sales Tax Laws for violation of statutory provisions, and that the penalty imposed by the Sales Tax Authorities is only a civil liability, though penal in character, and that Section 9 of the Amending Act cannot be said to offend Article 19(1) (f), (g) or Article 20(1) of the Constitution. The learned Senior Counsel would also argue that the decision of Pareeth is not applicable in the instant case as the inspection by the APTS in that case was conducted on 14-03-2003, which is prior to the Electricity Act, 2003 coming into force. But in the instant case, the APTS had conducted the inspection on 23-07-2003. It is also submitted that the fact of Ext.P11 notification was not considered in Pareeth's case. The learned Senior Counsel for the appellant would also submit that the decision in Kerala State Electricity Boad v. Najeeb, 2005 (1) KLT 406 is also not applicable in the instant case because in that _WA.792/2015_ 6 case also the inspection by the APTS was on 02-10-2004, after the Electricity Act 2003 came into force. It is submitted that by virtue of Ext.P11 notification, the provisions of Electricity Act, 2003 was kept in abeyance for a period starting from 10-06-2003, the 'appointed date' till 10-12-2003 when the six months period ends. 4. We are in agreement with the learned Senior Counsel with regard to the retrospective application of the penal provisions of the Electricity Act by the State notification not being violative of the constitutional provisions in view of the Honourable Supreme Court holding that such penal provisions are civil in nature. The learned Single Judge was, therefore, not justified in holding constitutional violation in the impugned judgment. 5. A perusal of Ext.P11 notification would indicate that it was notified on 23-08-2003 and it is stated that except Sections 1, 121, clause (d) of Section 172, all the provisions contained in the Electricity Act, 2003 shall not apply in the State of Kerala for six months from the appointed date, ie., 10-06-2003. Section 172(d) _WA.792/2015_ 7 reads thus: “ 172. Transitional provisions :- Notwithstanding anything to the contrary contained in this Act,- (a) xx xx (b) xx xx (c) xx xx (d) the State Government may, by notification, declare that any or all the provisions contained in this Act, shall not apply in that State for such period, not exceeding six months from the appointed date, as may be stipulated in the notification.” The learned Senior Counsel would submit that Ext.P11 notification would come into effect on the State exercising its power under Section 172(d) and the power granted to the States is only to stall the applicability of the new Act for a maximum period of six months from the 'appointed date', which is 10-06-2003. Section 1 of the Electricity Act states that it shall come into force on such date as the Central Government may, by notification, appoint. The central notification came on 10-06-2003, and thus became the 'appointed date'. The State Government could have come with a notification as contemplated under Section 172(d) on any day consequent to the 'appointed date', but within a period not exceeding six months from that date. The State Government _WA.792/2015_ 8 brought about the notification only on 23-08-2003, by that time, the Electricity Act 2003 had already come into force from 10-06-2003. This was undone only with effect from 23-08-2003 by Ext.P11 notification. Hence, it has to be construed that the State Government lost some time from 10-06-2003 to 23-08-2003 in availing the provisions of Section 172(d). The Section states that by such notification, the provisions of the Act shall not apply in that State for such period, not exceeding six months from the appointed date. There is no embargo on its being made applicable for a lesser period. Six months from the 'date of appointment' is the outer limit. The contents of the notification would apply only with effect from the date it was notified. The words 'appointed date' in Section 172(d) qualifies the six month period. It cannot be said that whenever the notification is issued the suspension of the provision under the new Act would have effect from the appointed day. 6. The inspection by the APTS in the instant case had taken place on 23-07-2003, when the Electricity Act 2003 had already come in effect, and is prior to the coming into existence of Ext.P11 _WA.792/2015_ 9 notification. Hence the learned Single Judge was perfectly justified in holding that the notification did not apply in the instant case and that the provisions of Section 126 of the Electricity Act, 2003 would apply. Hence the argument of the learned Senior Counsel for the appellant is not acceptable. We are not inclined to interfere with the impugned judgment of the learned Single Judge. The Writ Appeal is dismissed. No costs. Sd/K.VINOD CHANDRAN Judge Sd/ASHOK MENON Judge dkr