K.A. Azeez v Kerala State Electricity Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944 WA NO. 752 OF 2021** ## **WP(C) 9308/2010 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** K.A.AZEEZ,S/O. LATE K.ABDU, KIZHISSERY HOUSE, P.J.ANTONY ROAD, VADUTHALA, PIN-682023, NOW RESIDING AT 48/206(J), GREEN RIPPLE ROAD, SAMIPADY, ELAMAKKARA, COCHIN-26. BY ADVS. E.K.NANDAKUMAR (SR.) M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI/JOSON MANAVALAN KURYAN THOMAS/PAULOSE C. ABRAHAM RAJA KANNAN/JAI MOHAN ## **RESPONDENT/S:** 1 KERALA STATE ELECTRICITY BOARD VYDHYUDHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN-695004, REPRESENTED BY ITS SECRETARY. 2 THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, ERNAKULAM, PIN-683542. 3 THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, ERNAKULAM, PIN-683542. 4 THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, VADUTHALA, ERNAKULAM, PIN-682023. **WA NO. 752 OF 2021** 5 KERALA STATE ELECTRICITY REGULATORY COMMISSION, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN-695010, REPRESENTED BY ITS CHAIRMAN. BY ADV SUDHEER GANESH KUMAR.R., SC SHRI B PREMOD, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON - 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA NO. 752 OF 2021** -3- ## **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **WA NO. 752 OF 2021** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT (Dated this the 21[st] day of July 2022) ## Basant Balaji J., The appellant challenges the judgment of the learned single judge in W.P.(C) No.9308 of 2010 dated 9.4.2021, whereby the writ petition was dismissed. 2. The appellant filed the writ petition for a declaration that regulation 51(1) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 is ultra vires of the Electricity Act 2003 and therefore, not enforceable. A writ of certiorari was sought for quashing Ext.Nos.P1, P2, P9,P11 and P12. **WA NO. 752 OF 2021** 3. The appellant availed an electricity connection for the purpose of construction of a multistoried building complex. A notice dated 17.8.2009 was issued to the appellant directing him to pay Rs.8,75,902/- towards short assessment against fixed charges and energy charges for the period from 7/2007 to 5/2009 on the ground that the appellant had connected an additional load of 23 kw when the authorised connected load was only 7 kw. The main contention raised before the learned Single Judge was that the bill issued to the appellant produced as Ext.P4 dated 16.7.2007 show that the connected load is 31 KW, hence there is no unathorised connected load. Ext.P5 is another bill dated 15.6.2007 in which the connected load is 6790 Watts. It is noting the said difference in the connected load, Ext.P1 short assessment bill was issued to the **WA NO. 752 OF 2021** -5- appellant. The appellant filed an objection to Ext.P1 demand notice. But the Kerala State Electricity Board, through Ext.P9 final determination order passed on 27.1.2010, directed the appellant to remit an amount of Rs.8,75,902/- on or before 3.2.2010 to avoid revenue recovery proceedings. In the same order itself, it was stated that the appellant was free to file appeal before the Deputy Chief Engineer, Electrical Circle, Ernakulam. The appellant, without approaching the statutory remedy, has approached this court by filing this Writ Appeal. 4. The main contention raised by the counsel for the appellant is that since the unathorised load in Ext.P4 is 31 KW and he had paid the consumption charges according to the electricity consumed, there cannot be any allegation against him that there is an unathorised load to the tune of **WA NO. 752 OF 2021** -6- 23KW and no proceedings under Section 126 of the Act can be initiated against him, as there is no unathorised use of electricity. 5. Before the learned Single Judge, the appellant relied on the judgment of Division Bench of this court in in **Sulabha Marketing (P) Ltd. v. KSEB, Thiruvananthapuram and others [2017 (3) KHC 563],** in which the Division Bench held in finding No.(vi) in para No.31, as follows: “(vi) However, in the case of a consumer, who is blamed with overdrawal of electricity in excess of sanctioned / connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under S.126(6) of the Act can only be equal to twice the fixed charges payable **WA NO. 752 OF 2021** -7- and such consumer cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of services, unless regularisation of such additional connected load or enhancement of contract demand necessitates upgradation of the existing distribution system or enhancement of voltage level of supply.” The learned Single Judge did not agree with the contention raised by the counsel for the appellant regarding finding No.(vi) of the judgment of the Division Bench as the learned Single Judge found that finding Nos.(ii), (iii) and (iv) of the judgment specify that whenever there is a breach of the terms and conditions of the agreement, regulations and provisions of the Act by consuming electricity/connected load, such consumer would be liable to pay at the rate equal twice the tariff applicable for the relevant category in terms of Section 126 of the Act. In **WA NO. 752 OF 2021** **Sulaba(s** upra), the Division Bench, in finding No.(iv), explains the term ‘tariff’ incorporated in section 126(6) of the Act which includes the fixed charges and charges for the electricity supplied, which has to be assessed in the case of a consumer indulge in unauthorised use of electricity at the rate equal to the tariff applicable. When tariff is explained in Section 126(6) of the Act includes both fixed and charges of electricity supplied, the contention of the appellant that a rate equal to twice the tariff is applicable for the fixed charges, cannot be accepted. It is an admitted fact that the appellant has not filed any application for enhancement of the connected load. 6. A counter affidavit is filed on behalf of respondent Nos.1 to 4 contending that against the assessment proceedings made under Section 126 of the Act, there is a **WA NO. 752 OF 2021** -9- statutory remedy of appeal provided under Section 127 of the Act and the appellant has not availed of such remedy and has approached this court under 226 of the constitution of India, which is impermissible. 7. The appellant also challenges that Regulation No.51 of KSEB Terms and Conditions of Supply, 2005 is the ultra vires of the Electricity Act. The said challenge is already answered in **Sulaba** (supra) wherein it was held that Regulation 51(1) of the Conditions of Supply, 2005 is neither ultra vires of the provisions of Section 126 of the Act or enforceable. 8. The appellant had taken a III phase service connection in Consumer No.18147 under LT VIIA tarrif with a sanctioned load of 7000 W. The officials of Electrical Section Vaduthala conducted a surprise **WA NO. 752 OF 2021** -10- inspection at the premises on 2.3.2005 and detected an unathorised additional load of 16 kw amounting to an aggregate load of 23 kw. It is submitted that appellant was served with a notice dated 4.3.2005 directing him to regularise the unauthorised load but he failed to regularise the load and continued using unauthorised load and hence, penal assessment was done and he was served with Ext.P3 assessment bill for the period from 3/2005 to 2/2006, which the appellant has remitted. But he did not file regularisation application for the additional connected load. It was only during the audit that it was noticed that the consumer was not authorised for additional load from 7/2007 to 5/2009 and thus, the assessment was completed, and a bill was issued to the appellant. It was also contended that at the time of providing electric supply, an **WA NO. 752 OF 2021** -11- agreement was executed by the appellant wherein it is specifically stated when there is a change in the installation, the consumer must intimate the licensee with alteration and drawing. Any addition or deletion to the installations are to be made with proper sanction from the licensee. 9. As per Section 126 of Act, the assessment of penal charges has to be two times the applicable tariff and since the tariff has two parts which consists of both fixed and energy charges, the consumer was assessed for both fixed and energy charges, hence the assessment is perfectly is illegal. 10. A reply affidavit was filed on behalf of the appellant, wherein it is stated that the authorised load of the appellant was 31 kw in the invoices and that it was because this that the respondent did not assess for any additional **WA NO. 752 OF 2021** -12- load. The assessment under Section 126(6) of the Act can only be equal to twice the fixed charges payable and as such, the appellant cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of service, since he has already remitted the energy charges which he had consumed. 11. Section 126 of the Act deals with the assessment. The section reads that if on an inspection of any place or premise after inspection of 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 of the electricity charges payable by such person or by any such person benefitted by **WA NO. 752 OF 2021** -13such use. Sub clause (b) to Section 126 of the Act defines ‘unauthorised use of electricity’, which includes the purpose other than for which the usage of electricity was authorised. It is an admitted fact that the appellant was authorised to draw only 7 kw as authorised load, but he was consuming excess load by 23 kw, totalling 31 kw, which means there was unauthorised connected load. The only contention raised is that the billing officer has issued bills, in which the connected load is shown as 31 kw and hence, it has to be accepted that the Board had approved the connected load availed by the appellant. Merely because the bill issued by the Board shows that the connected load is 31 kw, it cannot be said that the connected load is approved by the Board. A comparison of Ext.P4 and P5 shows that for the month June 2007, the bill shows the **WA NO. 752 OF 2021** -14- connected load as 6790 watts, but Ext.P4 dated 16.7.2007 shows the connected load as 31 kw. Thus, within one month, the connected load has been increased from 7 kw to 31 kw. Admittedly, no application has been filed by the appellant either before or after intimation from the Board for sanction of additional load. 12. Regulation 27A of Kerala State Electricity Supply Code, 2005 deals with the assessment of electricity charges payable in case of unathorised use of electricity. Reading of section 126 of Act 2003 and Regulation 27A of Kerala State Electricity Supply Code, 2005 would show that the Board was justified in issuing a short assessment bill for the unathorised load. The learned Single Judge, relying on the provisions contained in the Kerala State Electricity Board Terms and Conditions of Supply, 2005 as **WA NO. 752 OF 2021** -15- well as Kerala State Electricity Supply Code, 2005 held that the assessing officer has rightly issued the short assessment bill and there is no illegality or arbitrariness in passing Ext.P9 order justifying interference invoking the power of judicial review under Article 226 of the Constitution of India. On going through the judgment of learned Single Judge, we are of the considered opinion that the learned Single Judge has rightly dismissed the Petition, as there was no illegality in Ext.P9 order issued by the Assistant Engineer. In the result, the Writ Appeal fails and the same is, accordingly, dismissed. Sd/- **S.V.BHATTI, JUDGE** ## **sd/- BASANT BALAJI, JUDGE** _dl/_