High Court of KeralaSingle Judge2013-12-10Partly allowed; penalties recalculated and revi...

K. C. Mohammed Ibrahim and Jameela v. Kerala State Electricity Board and Others

Case / Petition Number:WP(C).No. 3954 of 2009 (U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.K. Abdul Rehim
Judgment Date: 2013-12-10
Court Decision / Holding: The writ petition is allowed to the extent of modifying the final orders of assessment. For Consumer No. 2899, penalisation under LT VII A should be computed by charging fixed charges for 1 kW of unauthorised load at two times for a period of one year preceding the date of inspection, with current charges on proportional consumption levied at the date of inspection. For Consumer No. 5306, penalisation should be by charging fixed charges for 1 kW of unauthorised load for a period of 3 months at two times the rate applicable as on the date of inspection, with proportional consumption charges at the current rate for the same period. The 3rd respondent shall issue revised bills within one month, with payments adjusted for any prior amounts and refunds of excess payments as applicable.
Final Disposition: Partly allowed; penalties recalculated and revised bills to be issued; matter disposed with directions for payment adjustments.

Parties to the Case

Appellants / Petitioners

K.C.MOHAMMED IBRAHIM
JAMEELA

Respondents

KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BAVANAM, THIRUVANANTHAPURAM
DEPUTY CHIEF ENGINEER, KSEB, ELECTRICAL CIRCLE, PALAKKAD
ASSISTANT ENGINEER, KSEB, ELE. CIRCLE PUDUKKODE, PALAKKAD
SUB ENGINEER, KSEB, MUDAPPALUR ELECTRICAL SUB DIVISION, SQUAD, MUDAPPALLUYR

Legal Representation & Advocates

Counsels for Petitioners

• SRI.U.BALAGANGADHARAN

Counsels for Respondents

• SRI.P.P.THAJUDEEN, SC, K.S.E.B
• SMT.P.K.RADHIKA-KSEB

Case Synopsis & Summary

Petitioners, a husband and wife, challenge penalties under Section 126 of the Electricity Act, 2003, imposed for alleged unauthorised electricity usage at two connections. An inspection on 14.02.2008 found unauthorised extension at Consumer No. 2899 (in the name of the first petitioner) and a 3-pin wire extension at Consumer No. 5306 (in the name of the second petitioner). The 2899 connection, originally allowed as temporary during demolition and construction, was alleged to be used to run a shop; the 5306 connection was said to enable unauthorised extension to a first-floor building, though the mahazar did not clearly link the wire to the unauthorised use. The Appellate Authority upheld penalties but found procedural flaws; the petition challenged the penalties, arguing that meter shifting and temporary construction permissions negate una authorised usage, and contends that the charges should be fixed rather than LT VIII tariff-based. The court noted conflicting documentary evidence and cited two precedents to restrict tariff-based penalties. The court ultimately allowed the writ petition to the extent of modifying the penalties: for 2899, penalisation to be computed as fixed charges for 1 kW for two times for the year preceding inspection, with current consumption charges accordingly; for 5306, fixed charges for 1 kW for three months at double rate, with proportionate consumption charges at the rate on the date of inspection. Revised bills are to be issued within a month with appropriate adjustments for prior payments.

Provisions of Law Cited

Electricity Act, 2003, Section 126Electricity Act, 2003, Section 126(6)(b)Tariff LT VII ATariff LT VIII

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the penalty under Section 126 of the Electricity Act, 2003 is unwarranted since the meter for Consumer No. 2899 was shifted with the authority’s permission due to demolition and the connection was treated as a temporary construction supply; thus there was no unauthorised usage for the main premise. They argue that the site mahazar for Consumer No. 5306 does not clearly show unauthorised usage, noting the presence of a 3-pin wire intended for temporary extension and that residents admitted only temporary use, not permanent unauthorised consumption. They rely on prior court rulings that LT VIII tariff cannot be used for penalising unauthorised extensions and seek recalculation of penalties on the basis of fixed charges rather than LT VIII, with proportional consumption charges adjusted to the date of inspection.

Contentions of Respondents

The respondents maintain that unauthorised usage was detected and penalised under Section 126. They argue that the 3-pin wire found on the site and the temporary extension constitute unauthorised usage. They defend the appellate orders, contending procedural compliance and valid computation of penalties, and that tariff provisions were correctly applied. They urge the court not to disturb factual findings of the appellate authority and to dismiss the writ petition or uphold the penalties with appropriate adjustments.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
J.D.T Islam Orphanage Committee v. Assistant Engineer, K.S.E.B	2007(3) KLT 388	Positive	Cited as authority to restrict the LT VIII tariff for penalties and to support the approach that penalties must be computed on fixed charges with proportional consumption, not on LT VIII for unauthorised extensions.
Jomy Thomas Manjooran v. Kerala State Electricity Board	2013(1) KLT 595	Positive	Cited for the proposition that tariff LT VIII is not to be used for penalising unauthorised extensions; supports the court’s recalibration of penalties.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 10TH DAY OF DECEMBER 2013/19TH AGRAHAYANA, 1935** ## **WP(C).No. 3954 of 2009 (U)** ## **---------------------------** ## **PETITIONER(S):** **----------------------** **1. K.C.MOHAMMED IBRAHIM, AGED 60 YEARS S/O.MOIDEENKUTTY, MANAPPADAM PO., PALAKKAD** **2. JAMEELA, AGED 55 YEARS, W/O.MOHAMMED IBRAHIM, MANAPPADAM PO., PALAKKAD.** ## **BY ADV. SRI.U.BALAGANGADHARAN** **RESPONDENT(S):** - **----------------------------** **1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BAVANAM, THIRUVANANTHAPURAM.** **2. DEPUTY CHIEF ENGINEER, KSEB, ELECTRICAL CIRCLE, PALAKKAD.** **3. ASSISTANT ENGINEER, KSEB, ELE. CIRCLE PUDUKKODE, PALAKKAD.** **4. SUB ENGINEER, KSEB, MUDAPPALUR ELECTRICAL SUB DIVISION, SQUAD, MUDAPPALLUYR.** **R1 TO 4 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R1-4 BY ADV. SMT.P.K.RADHIKA-KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 3954 of 2009 (U)** ## **APPENDIX** ## **RESPONDENTS EXHIBITS:** **EXHIBIT-P1 DEMAND AND CONNECTION NOTICE NO. 14 DATED 10.10.07 ISSUED TO THE FIRST PETITIONER BY THE BOARD.** **EXHIBIT-P1(a) DEMAND AND DISCONNECTION NOTICE NO. 31174 DATED 10.8.07 DATED 17.8.07 TO THE FIRST PETITIONER BY THE BOARD.** **EXHIBIT-P2 REQUEST OF THE FIRST PETITIONER FOR SHIFTING THE CONNECTION DATED 2.8.07 TO THE 3[RD] RESPONDENT.** - **EXHIBIT-P2(a) REQUEST OF THE FIRST PETITIONER REMINDING SHIFTING DATED 4.10.07.** - **EXHIBIT-P3 MAHASAR DRAWN BY THE 4[TH ] RESPONDENT DATED 14.2.08** - **EXHIBIT-P4 DEMAND AND DISCONNECTION NOTICE DATED 29.2.08, NO. 02091 BY THE 3[RD] RESPONDENT TO THE 1[ST ] PETITIONER.** - **EXHIBIT-P4(a) DEMAND AND DISCONNECTION NOTICE DATED 15.2.08 BY THE 3[RD] RESPONDENT TO THE 2[ND ] RESPONDENT.** - **EXHIBIT-P5 PROCEEDINGS OF 3[RD] RESPONDENT NO. DB27/2007-08 DATED 21.2.08 ISSUED TO THE 1[ST ] RESPONDENT.** - **EXHIBIT-P6 APPELLATE ORDER NO. GB2/REVENUE/08-09 DATED 19.5.2008 BY THE 2[ND] RESPONDENT.** - **EXHIBIT-P7 JUDGMENT IN WPC 17918/2008 DATED 16.6.2008.** - **EXHIBIT-P8 PROCEEDINGS NO. DB/27/PDE/2008-09 DATED 31.10.08 ISSUED BY THE 3[RD] RESPONDENT.** - **EXHIBIT-P9 APPEAL SUBMITTED BY THE FIRST PETITIONER DATED 10.11.08 BY THE 1[ST ] PETITIONER TO THE 2[ND] RESPONDENT.** - **EXHIBIT-P9(a) APPEAL SUBMITTED BY THE 2[ND] PETITIONER DATED 10.11.08 TO THE 2[ND ] RESPONDENT.** - **EXHIBIT-P10 APPELLATE ORDER NO. GB2/REVENUE/08-09 DATED 19.1.09 BY THE 2[ND ] RESPONDENT I.R.O FIRST PETITIONER.** - **EXHIBIT-P10(a) APPELLATE ORDER NO. GB2/REVENUE/08-09 DATED 19.1.09 BY THE 2[ND] RESPONDENT I.R.O SECOND PETITIONER.** - **EXHIBIT-P11 PROCEEDINGS NO. DB27/2008-09 DATED 23.1.2009 ISSUED BY THE 3[RD] RESPONDENT I.R.O SECOND PETITIONER.** **CONTD..2..** **..2..** **EXHIBIT-P11(a) PROCEEDINGS NO. DB.27/2008-09 DATED 23.1.2009 OF THE 3[RD] RESPONDENT I.R.O SECOND PETITIONER.** **EXHIBIT-P11(b) DEMAND AND DISCONNECTION NOTICE NO. 75499 DATED 21.1.2009.** ## **RESPONDENTS EXHIBITS:** **EXHIBIT- R1(a) COPY OF THE REQUEST.** ## **// TRUE COPY //** **P.A TO JUDGE** **SB** **C.K ABDUL REHIM, J., -----------------------------W.P.C No.3954 OF 2009 -------------------------------Dated this the 10[th] day of December, 2013.** ## **J U D G M E N T** The petitioners herein are husband and wife. Penalty under Section 126 of Electricity Act, 2003 was imposed against both of them with respect to alleged unauthorised usage of electricity detected at the premises of Consumer No. 2899 provided in the name of the 1[st] petitioner and Consumer No. 5306 provided in the name of the 2[nd] petitioner. Electric connection with Consumer No. 2899 was provided for commercial purpose and electric connection with Consumer No. 5306 was provided for domestic purpose. 2. The inspection in question was conducted on 14.02.2008. Allegation with respect to Consumer No. 2899 was that, the Electric Meter in the said connection was shifted to another place on demolition of the original building and on conversion of the connection as a temporary connection for construction purposes. But it was **2** W.P.C No.3954 OF 2009 detected that electric supply in the said connection was unauthorisedly used for another shop by extending the wires. Allegation with respect to Consumer No. 5306 was that, it was detected that a telephone cable with a 3-pin connected with it was kept at the premises for taking unauthorised extension to the first floor of a new complex constructed just in front of the premises, and electricity supplied at the authorised premises was misused in the said building. The assessment of penalty finalised in both these cases were taken up in appeal before the 2[nd] respondent. In Ext. P6 order, the Appellate Authority found that there is violation of procedure formalities contemplated under Section 126 of the Electricity Act, 2003. However, the Appellate Authority had discarded all the contention regarding unsustainability of the allegations of misuse. Ext. P6 order was challenged by the petitioners before this court in a writ petition. In Ext. P7 judgment, this Court directed the 3[rd] respondent to finalise the assessment afresh treating Exts. P4 and P4(a) bills as provisional invoices and **3** W.P.C No.3954 OF 2009 taking note of the objections submitted by the petitioners, after affording an opportunity to personal hearing. But the 3[rd] respondent had confirmed the penal assessments, which was again subjected to challenge in appeal before the 2[nd] respondent. Exts. P10 and P10(a) are the appellate orders issued. It is challenging Exts. P10 and P10(a), this writ petition is filed. 3. In Ext. P10 with respect to Consumer No. 2899 in the name of the 1[st] petitioner, the Appellate Authority had confirmed the penal assessment, discarding all the contentions. In Ext.P10(a) order with respect to Consumer No. 5306 in the name of the 2[nd] petitioner, the appellate authority allowed reduction in the period of assessment to 6 months instead of one year as originally assessed. 4. Contentions of the petitioners with respect to Consumer No. 2899 is mainly that, the Electric Meter was shifted with permission of the authority and there was no unauthorised usage. From the materials **4** W.P.C No.3954 OF 2009 available it is evident that the shifting was permitted on account of demolition of the building and change of category as temporary connection for construction purpose. But during inspection it was found that electrical energy drawn from the Meter was used in a shop room. Therefore it is evident that there was unauthorised usage of electricity other than for the purpose for which it was authorised. Such unauthorised usage of electricity will come within the purview of Section 126 6 (b) of the Act and is liable to be penalized. 5. With respect to Consumer No. 5306 the main contention is that no unauthorised usage was detected. The 'site mahazar' prepared at the time of inspection indicates that a telephone wire connected with a 3-pin was detected from the premises. It is not mentioned in the 'mahazar' that the wire was seen connected to any premises, especially to the premise where the unauthorised usage was alleged. But it is mentioned that a telephone wire fitted with a 3-pin was kept in such a manner that at W.P.C No.3954 OF 2009 **5** any time electric connection can be extended from the premises to a house situated on the first floor of a complex constructed just in front. In Ext. P10(a) appellate order it is mentioned that, at the time of inspection the inmates residing in the premises conceded that the extension was temporarily used for a short period to the alleged premises, even though the alleged premises was seen kept locked at the time of the inspection. It is on the basis of the above said facts, the Appellate Authority had given reduction in the period of assessment. Hence, contention that there was no detection of unauthorised usage of cannot be accepted. Moreover this court cannot interfere with a factual finding arrived by the Appellate Authority. 6. Learned counsel for the petitioner had pointed out that Exts. P4 and P4(a) as well as Ext. P11(b) bills reveal that penalty was computed on the fixed charges calculated at LT VIII tariff, which is applicable to authorised temporary extensions. In the decisions of this court in **J.D.T Islam Orphanage Committee** v. **Assistant** **6** W.P.C No.3954 OF 2009 **Engineer, K.S.E.B in [2007(3) KLT 388]** and in **Jomy Thomas Manjooran** v. K **erala State Electricity Board in [2013(1) KLT 595]** , it is held that tariff LT VIII, which is applicable with respect to authorised temporary extensions cannot be adopted for penalising unauthorised extensions. The dictum is to the effect that penalty can be imposed only on fixed charges and proportionate consumption charges at the tariff applicable for the purpose for which connection is provided at the main premises. 7. In view of the settled legal position, this court is of the opinion that the computation of penalty adopting charges applicable to authorised temporary connections made under LT VIII, cannot be sustained. Since the appellate authority had found that unauthorised usage in Consumer No. 5306 was only for a very limited period, this court is of the opinion that it will be justified if penalty imposed in Consumer No. 5306 is restricted to a period of 3 months. W.P.C No.3954 OF 2009 **7** 8. In the result, the Writ Petition is allowed to the extent of modifying the final orders of assessment, to the following extent. (1) Penalisation in Consumer No. 2899 in the name of the 1[st] petitioner under LT VII A should be made by charging fixed charges with respect to 1kw unauthorised additional load detected, at two times for a period of one year preceding the date of inspection at the rate which was applicable as on the date of inspection. Current charges on the proportionate consumption of 1kw unauthorised additional load shall be levied at one time, for the said period, at the relevant rates applicable as on the date of inspection. (2) Penalisation with respect to Consumer No. 5306 should be made by charging fixed charges with respect to 1kw unauthorised additional load for a period of 3 months at two times of the rate applicable as on the date of inspection. Current charges on the proportionate consumption of 1kw unauthorised additional load shall be **8** W.P.C No.3954 OF 2009 levied at the rate applicable as on the date of inspection, at one time, for the period of 3 months. The 3[rd] respondent shall issue revised bills with respect to both the connections to the respective petitioners within a period of one month from the date of receipt of a copy of this judgment. Payments already made by the petitioners shall be appropriated against the revised demands. Excess payments if any shall be adjusted against the future bills / refunded. If any balance amount is due from the petitioners, 15 days time for payment shall be granted from the date of service of the revised bill. **C.K. ABDUL REHIM, JUDGE** SB