# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
## **THE HONOURABLE MR. JUSTICE AMIT RAWAL**
**WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944**
## **WP(C) NO. 14711 OF 2021**
## **PETITIONER/S:**
KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS SECRETARY.
BY ADV B.PREMOD
## **RESPONDENT/S:**
1 THE KERALA STATE ELECTRICITY APPELLATE AUTHORITY (CONSTITUTED UNDER SECTION 127 OF THE ELECTRICITY ACT 2003) CC.51/52, NEAR 110 KV SUB STATION, VYTTILA, KOCHI682019. 2 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KSEB LTD., MALAPPURAM DISTRICT676102. 3 BABU PATTATHANAM, SENIOR MANAGER- LEGAL, M/S. ATC TELECOM INFRASTRUCTURE PVT. LTD., 36/2624, CHERAMANGALATH HOUSE, SHENOY ROAD, KALOOR, KOCHI-682017. BY ADVS. SANTHOSH MATHEW ARUN THOMAS JENNIS STEPHEN JAISY ELZA JOE KARTHIKA MARIA ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL NANDA SANAL SANITA SABU VARGHESE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
Order of the appellate authority rendered in appeal No.7 of 2019, Ext.P10 preferred by the consumer against the Electricity Board has been assailed by the petitioner, KSEB. Inter alia on the submissions that the appellate authority confined the entitlement of the petitioner to assess the consumer against the unauthorized additional load of 6 KW against fixed charges which is arbitrary, unreasonable and against the principles of law laid down in the judgments Sri. Seetharam rice mills (2012 (2) SCC 108) and Sulabha marketing (P) Ltd. (2017(3) KHC 563).
2. On 26.9.2018, the Anti Power Theft Squad Kozhikode Unit of KSEBL along with the officials of Electrical Section, Malappuram East conducted surprise inspection in the premises and found that the consumer had connected unauthorized additional load of 10KW over and above the sanctioned load of 6780 watts and was catering an aggregate load of 17 KW ie., 7 KW etc. The site mahasar dated 1.10.2018 was prepared reflecting the provisional assessment of Rs.4,95,729/-, Ext.P1. Respondent
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preferred an objection Ext.P4 and on the basis of the objection assessing officer heard the consumer and site was inspected on 31.10.2019. Assessment was revised to Rs.3,83,643/- vide Ext.P6. The aforementioned order was assailed by the respondents before the appellate authority.
3. Mr. Pramod learned counsel appearing on behalf of the petitioner submitted that there was no up gradation of the work of the distribution system when the connected load was regularized on 10.1.2019 with an aggregate load of 22 KW. In fact the up gradation for the system was done by the licencee on 28.2.2019 within a short time of regularization of the connected load as there was a deficiency of materials required for up gradation. Ext.P9 photographs though shows the replacement of the service wire and the fuse units but unfortunately, due to inadvertent omission while producing Ext.P9, the photographs that has been taken before the up gradation of the system was mistakenly produced and through separate application, correct photographs have been placed on record, showing the replacement of the service wire and fuse units. The technical standard for providing supply above 10 KW, ie., for
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connected load above 10 KW and up to and including 25 KW, 100 ampere fuse unit and 50mm2 aluminum cable is required to be used for which the consumer has to remit amounts fixed as per the cost data distribution works approved by the Kerala State Electricity Regulatory Commission.
4. The consumer remitted ECSC amount of Rs.14,550/- for regularization and enhancement of the connected load from 7KW to 22 KW. But the same was done only at a later point of time owing to the shortage of the materials. Appellate authority relied upon the photographs and negatived the requirement for up gradation of the distribution system by observing that the fuse unit and service wire existed in the premises were already of a higher capacity than required for a connected load up to 10KW and by setting aside the assessment, directed the licencee to issue revised assessment within 15 days at two times the rate of LT VIF tariff, for the fixed charges only on account of unauthorized additional load of 6 KW for a period of 12 months prior to the date of inspection and further directed that the excess amount remitted if any can be refunded with interest as per regulation 158(18) of the Kerala
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Electricity Supply Code 2014, Ext.P10.
5. The said findings are totally arbitrary, unreasonable as consumer admitted the total load detected in the premises was 13 KW and in such circumstances appellate authority ought not to have accepted the contention of the consumer while regularizing the load on 10.1.2019 with an aggregate load of 22 KW that no up gradation of the work of the distribution system was carried out by the licencee. There was no illegality on the part of the licencee in adopting a procedure to ensure continuance of supply without interruption to the consumer if the licencee feels that such a temporary arrangement would not cause serious prejudice to the licencee, the distribution system as well as the consumer in unavoidable circumstances.
6. Ext.P6 final assessment order has been passed by the Assessing officer after duly considering the objections raised by the consumer and on arriving at a conclusion unambiguously that the consumer admitted unauthorized use of electricity by connecting unauthorized additional load without the knowledge of the licencee.
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7. On the other hand, the respondent opposed the aforementioned prayer and submits that the order of the electricity authority which is a competent authority having better technical knowledge cannot be intervened unless there is a gross illegality and perversity, which is conspicuously wanting and urged this Court for dismissal of the writ petition.
8. I have heard the learned counsel for the parties and appraised the paper book. It is crystal clear that in the first instance petitioner raised the demand of Four lakhs and odd amount but on receipt of the objection realizing that there was some fallacy reduced the amount to Rs.3,83,643/-. There is a clear cut omission of the petitioner of not having the proper equipment for up gradation of the fuse and the line which is evident from the contents of paragraph 3 of the I.A No.1 of 2022 whereby a correct copy of the photographs Ext.P9 has been placed on record, the same reads as under:
_3. Before the appellate authority the respondent contented that no upgradation of the distribution system was carried out by the KSEBL when the connected load was regularized on 10.1.2019 with an aggregate load of 22 KW. In fact upgradation for the system had been done by the licenceee on 28.2.2019 within a short time of regularizing the connected load as there was acute shortage of materials in the field office_
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_when regularization was done on 10.1.2019. For proving the same the petitioner had produced Ext.P9 photographs showing the replacement of the service wire and the fuse units. Unfortunately by an inadvertent omission, while producing the Exhibits as Ext.P9 it so happened that the photographs that were taken before upgradation of the system was mistakenly produced and marked as Exhibit P9 in the writ petition. In the said circumstance it is essential that Ext.P9 has to be substituted with the actual photographs taken after replacing the service wire and fuse units on 28.2.2019 for proving the upgradation done by the licencee. The photographs showing the replacement of the service wire and fuse units is produced herewith and marked as Exhibit P9. The same is essential for a proper adjudication of the writ petition._
The regularization concededly was done on 10.1.2019 after the inspection, thus there was no faults to be attributed to the consumer of not upgrading the system. The competent authority by relying upon the judgment of Executive Engineer and Another v. Sri. Seetaram Rice Mill (2011 KHC 4978) held that the expression 'unauthorized use of electricity' would be as bearing in Section 126(3) of the 2003 Act and an expression of wider connotation to be construed for the purpose/ in contrast to the textual interpretation. It has been made clear that the existence of unauthorized additional load shall be reckoned as unauthorized use of electricity and shall be assessed under 126 and it was also observed that the assessment has to be made two times the rate of
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LT VI F of tariff for both fixed charges and proportionate energy charge on account of unauthorized usage for a period of twelve months. Section 45(3) of the Electricity Act provides the charges for electricity supplied by the distribution licencees will include the fixed charges in addition to the charge for actual electricity supplied. Tariff has two components, fixed charges and energy charges. Consumer challenged the inclusion of the energy charges in the assessment and the Division Bench of this Court in W.P.(C) No.31025 of 2008 decided on 12.4.2017 held that only twice of the fixed charges can be charged and not other charges except fixed charges alone unless the regularization of additional connected load or enhancement had already been done. In the case in hand, the regularization was done much later. Though the basis of the findings of the appellate authority being on earlier photographs Ext.P9 showing that the service wire and fuse units having 63 A rating and 10 sq.m size whereas according to the petitioner they were regularized only on 10.1.2019. Even the correct photographs, placed on record later reflects that the regularization was done much later. Therefore there cannot be any willful default on behalf
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of the consumer of drawing over load which would fall under unauthorized overload. In my view, the findings of the authority in directing the licenceee to charge two times the rate of LT IV F tariff for the fixed charges only confining to 12 months is perfectly legal and justified. No ground for interference is made out.
Writ petition sans merit and is dismissed.
## _**Sd/-**_
sab
**AMIT RAWAL JUDGE**
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## **APPENDIX OF WP(C) 14711/2021**
PETITIONER EXHIBITS
Exhibit P1
TRUE COPY OF THE MAHAZAR DATED 26.9.2018 AND ITS ENGLISH TRANSLATION.
Exhibit P2 TRUE COPY OF THE PROVISIONAL ASSESSMENT ORDER DATED 1.10.2018 AND ITS ENGLISH TRANSLATION.
Exhibit P3 TRUE COPY OF THE PROVISIONAL BILL DATED 29.9.2018 AND ITS ENGLISH TRANSLATION. Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT CONSUMER ON 22.10.2018
Exhibit P5 TRUE COPY OF THE ADDITIONAL SITE MAHAZAR PREPARED ON 31.10.2018 AND ITS ENGLISH TRANSLATION.
Exhibit P6 TRUE COPY OF THE FINAL ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER DATED 2.11.2018 AND ITS ENGLISH TRANSLATION.
Exhibit P7 TRUE COPY OF THE APPEAL PREFERRED BY THE CONSUMER DATED 10.1.2018.
Exhibit P8 TRUE COPY OF THE COST DATA OF DISTRIBUTION WORKS APPROVED BY THE KERALA STATE REGULATORY COMMISSION DATED NIL.
Exhibit P9 A COPY OF THE PHOTOGRAPHS SHOWING THE REPLACEMENT OF THE SERVICE WIRE AND THE FUSE UNITS.
Exhibit P10 TRUE COPY OF THE ORDER OF THE KERALA STATE ELECTRICITY APPELLATE AUTHORITY IN APPEAL NO.7/2019 DATED 20.3.2019.
