Kerala State Electricity Board v. Rajeev V.K and Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938 WA.No. 363 of 2014 () IN WP(C).23547/2013 ------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 23547/2013 of HIGH COURT OF KERALA DATED 29-10-2013 ## APPELLANTS/RESPONDENTS 2 AND 3: -------------------------------- 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SECTION,OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, THALAYAZHAM, VAIKOM, KOTTAYAM - 686 607. ## BY ADV. SRI.JAICE JACOB,SC,KERALA STATE ELECTRIC ## RESPONDENTS/PETITIONER: ------------------------- 1. RAJEEV V.K - S/O. KUNJUKUNJU, AGED 43 YEARS, VETTOOR VEEDU, ACHINAKOM, KUDAVECHOOR P.O, VAIKOM - 686 141. ## 2. UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF POWER, 201, SHRAM SHAKTHI BHAVAN, NEW DELHI - 110 001. R1 BY ADV. SRI.P.B.SAHASRANAMAN R1 BY ADV. SRI.T.S.HARIKUMAR R1 BY ADV. SRI.K.JAGADEESH R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------W.A.No.363 of 2014 -----------------------------------------------------------------Dated this the 4[th] day of July, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. This Writ Appeal arises out of the judgment of the learned Single Judge dated 29.10.2013 in W.P.(C)No.23547/2013. The said Writ Petition was one filed by the 1[st] respondent herein seeking a writ of certiorari to quash the demand made in Ext.P4 order and seeking a declaration that Section 127 (2) of the Electricity Act, 2003 (as amended) (hereinafter referred to as the Act) in ultra vires of Article 14 of the Constitution of India. The learned Single Judge by the impugned judgment set aside the demand made in Ext.P4 and directed the appellants/respondents 2 and 3 in that Writ Petition to recalculate the demand in terms of the observation contained in para.5 of the judgment. Paras.5 and 6 of the judgment read thus:- 5. In view of dictum laid in the decisions cited above, computation of the penalty proposed in Ext.P2 which is confirmed in Ext.P4 is not sustainable. It is evident from Ext.P2 that penalty was imposed at the rate of W.A.No.363 of 2014 2 ₹65/- per day for 22KW unauthorized load at two times. Since such computation is unsustainable, the writ petition is allowed to the extent of quashing Exts.P2 & P4. The Assistant Engineer, Electrical Section, Thalayazham, who had issued Ext.P4, is directed to pass fresh orders finalising the penalty taking note of the observations contained herein above. The penalty should be restricted to 'Fixed Charges' applicable on the unauthorized load detected, at two times for a maximum previous period of one year. 'Energy Charges' should be restricted to the extent of the proportionate consumption on the unauthorized additional load detected, at one time, to a maximum of the said period. 6. Fresh orders shall be issued in this regard after affording a further opportunity of hearing to the petitioner, at the earliest possible, at any rate within a period of fifteen days from the date of receipt of a copy of this judgment. Needless to observe that the petitioner will be at liberty to invoke appellate remedy against such order, if he is aggrieved in any manner.” 2. Feeling aggrieved by the judgment of the learned Single Judge the Kerala State Electricity Board and the Assistant W.A.No.363 of 2014 3 Executive Engineer concerned, the 2[nd] and 3[rd] respondents in the Writ Petition are before this Court in this appeal. 3. We heard the arguments of the learned Standing Counsel for the KSEB representing the appellants herein, the learned counsel for the 1[st] respondent/writ petitioner and also the learned Assistant Solicitor General representing the 2[nd] respondent. 4. The pleadings and materials on record would show that the 1[st] respondent is a consumer under the 2[nd] appellant with consumer No.13243 under LT-VIIA Tariff. On 24.7.2013 an inspection was conducted in the premises of the 1[st] respondent, which resulted in Ext.P1 mahazar alleging detection of unauthorised additional connected load of 62 KW, as against the sanctioned connected load of 22 KW. Proceedings were initiated against the 1[st] respondent, which resulted in Ext.P2 provisional demand dated 25.7.2013 issued by the 2[nd] appellant demanding a sum of 10,43,900/-.₹ W.A.No.363 of 2014 4 5. Against the provisional demand made in Ext.P2 the 1[st] respondent submitted Ext.P3 objection. After considering the objections raised by the 1[st] respondent, the 2[nd] appellant vide Ext.P4 order dated 27.8.2013 demanded a sum of 5,21,950/-₹ towards penal charges. In the said demand, assessment has also been made for the fixed charges at the rate of 65/- per day₹ applicable for LT VIII Tariff. Feeling aggrieved by the said demand the 1[st] respondent approached this Court in W.P.(C) No.23547/2013, which has resulted in the impugned judgment of the learned Single Judge. 6. The learned Single Judge, after referring to the judgment of this Court in **J.D.T. Islam Orphanage Committee v. Assistant Engineer, KSEB (2007 (3) KLT 388)** came to the conclusion that imposition of the penalty under LT VIII Tariff proposed in Ext.P2, which was confirmed in Ext.P4, cannot be sustained. The reasoning of the learned Single Judge in this regard at para.4 of the impugned judgment reads thus:- “4. This Court in the decision _**J.D.T. Islam Orphanage Committee v. Assistant Engineer, KSEB [2007(3) KLT**_ W.A.No.363 of 2014 5 _**388]**_ held that imposition of penalty under LT (VIII) Tariff is not sustainable under Regulation 42(d) of the Conditions of Supply of Electrical Energy. The term, “respective tariff” under Regulation 42(d) denotes only the Tariff at which the quantity of supply at the main premises is billed. Whereas LT (VIII) is a Tariff provided for authorised extensions on a temporary basis. The unauthorized extension cannot be treated in par with temporary authorised extension, for the purpose of computation of Tariff. Hence it was directed that the computation of penalty should be made on the basis of the Tariff applicable with respect to the electric connection in question. In the decision in _**Jomy Thomas**_ _**Manjooran v. Kerala State Electricity Board [2013 (1) KLT 595]**_ this Court found that, provisions contained in Regulation 42(d) of the erstwhile Conditions of Supply of Electrical Energy are in _pari materia_ with provisions contained in Section 126 of Electricity Act, 2003. Therefore, as held in **J.D.T Islam Orphanage Committee's case** (cited supra) penalty cannot be imposed under LT(VIII) Tariff on detection of unauthorized extension, is the findings rendered.” The reasoning of the learned Single Judge in this regard is perfectly legal, warranting no interference in this appeal. 7. However we find that after observing in para.2 of the judgment that the question as to whether there was usage of W.A.No.363 of 2014 6 electricity in the unauthorised premises and if so from what date onwards such usage started are purely factual matters, the adjudication of which cannot be entertained in the writ petition, the learned Single Judge directed the Assistant Engineer, Electrical Section, Thalayazham who has issued Ext.P4 to pass fresh orders, with a direction that the penalty should be restricted to fixed charges applicable on the unauthorised load detected at two times for a maximum previous period of one year and that, energy charges should be restricted to the extent of the proportionate consumption on the unauthorised additional load detected, at one time, to a maximum of the said period. 8. As per sub section (5) of Section 126 of the Electricity Act, 2003, if the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to W.A.No.363 of 2014 7 a period of 12 months immediately preceding the date of inspection. Therefore, while making assessment in terms of sub section (5) of Section 126 the period of assessment can be limited to 12 months immediately preceding the date of inspection only in cases where the assessing authority reaches a conclusion that the period during which such unauthorised use of electricity has taken place cannot be ascertained. 9. Similarly sub section (6) of Section 126 of the Electricity Act, as substituted by Act 27 of 2007, provides that the assessment under Section 126 shall be made at the rate equal to twice the tariff applicable to relevant category of services specified in sub section (5) of Section 126. Therefore, the learned Single Judge should not have restricted such assessment at a rate equal to one time the tariff to a maximum period of one month. 10. In that view of the matter the judgment of the learned Single Judge is modified to the extent of directing the assessing authority to finalise the assessment proceedings in accordance W.A.No.363 of 2014 8 with sub sections (5) and (6) of Section 126 of the Electricity Act, taking note of the observations contained hereinbefore. 11. Fresh orders shall be issued in this regard after affording a further opportunity of hearing to the 1[st] respondent, at the earliest possible, at any rate within a period of fifteen days from the date of receipt of a copy of this judgment. 12. Needless to observe that the 1[st] respondent will be at liberty to invoke appellate remedy against such order, if he is aggrieved in any manner. The writ appeal is disposed of as above. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- ## **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge