Principal, Mar Athanasius College for Advanced Studies, Thiruvalla, Kerala v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 10TH DAY OF MARCH 2014/19TH PHALGUNA, 1935 WP(C).No. 13129 of 2008 (K) ---------------------------- PETITIONER: ----------PRINCIPAL, MAR ATHANASIOS COLLEGE FOR ADVANCED STUDIES, THIRUVALLA, KERALA-689 101. BY ADV. SRI.P.HARIDAS RESPONDENT(S): -------------- 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VIDUTHY BOARD, PATTOM THIRUVANANTHAPURAM-695 001. 2. THE CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM-695 001. 3. DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, PATHANAMTHITTA-689 101. 4. EXECUTIVE ENGINEER, ANTIPOWER THEFT SQUAD, KOTTAYAM-688 001. 5. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SECTION, THIRUVALLA-689 101. 6. ASSISTANT ENGINEER, ELECTRICAL SECTION, K.S.E.B., THIRUVALLA-689 101. RR-R1-R6 BY ADV. SMT.NAZEEBA.O.H., K.S.E.B R BY SRI.P.P.THAJUDEEN, SC, K.S.E.B THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-03-2014, ALONG WITH WPC. 8779/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.13129/08 **A P P E N D I X** ## PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE LETTER DT.2.3.05 FORWARDED TO THE 5TH RESPONDENT. EXT.P2: TRUE COPY OF THE LETTER NO.MF/10/2006 DT.27.10.06 SENT BY THE PETITIONER TO THE 5TH RESPONDENT. EXT.P3: TRUE COPY OF THE SCENE MAHAZAR DT.13.11.07. EXT.P4: TRUE COPY OF THE LETTER NO.BB/ATPS/07-08 DATED NIL BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P4(a):TRUE COPY OF THE DEMAND NOTICE DT.22.11.07. EXT.P5: TRUE COPY OF THE APPEAL DATED 26.11.07 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P6: TRUE COPY OF THE JUDGMENT DT.29.11.07 IN WPC.NO.35403/07-M OF THIS COURT. EXT.P7: TRUE COPY OF THE CHEQUE LEAF DT.11.12.07. EXT.P8: TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DT.5.4.08. EXT.P9: TRUE COPY OF THE BILL NO.BB/APTS/08-09 DT.5.4.08 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER. EXT.P9(a): TRUE COPY OF THE BILL DT.5.4.08 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER. P.S TO JUDGE ## **K.SURENDRA MOHAN, J.** ## **----------------------------------------------------W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V ---------------------------------------------------Dated this the 10[th] March, 2014** ## **J U D G M E N T** Both these Writ Petitions are filed by the same petitioner. The matters relate to unauthorised connected load that was detected in the premises of the petitioner. The petitioner is conducting a College. On 13.11.07, an inspection of the premises was conducted by the Anti Power Theft Squad (`A.P.T.S' for short). Ext.P3 is the mahazar prepared at the time of inspection. It was detected on inspection that, the petitioner had connected various equipments without getting any permission from the respondents. Though it was found that the petitioner was using only 28KW even if he was allotted a total of 33 KW, it was found that various equipments had been connected unauthorisedly. Further, it was found that the petitioner was consuming electricity for his Hostel, the residence for Teachers, the Hostel Mess, Canteen and other allied **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 2 facilities that were provided within the campus of the College. In view of the discrepancies, a provisional assessment was made under Section 126 of the Electricity Act, 2003 (hereinafter referred to as `the Act' for short). On the basis of the provisional assessment so made, Ext.P4 (a) penal bill was also issued demanding an amount of Rs.2,84,253/- from the petitioner. 2. The petitioner challenged the assessment made under Section 126 in Ext.P5 appeal, before the 3[rd] respondent. When there was a threat of disconnection of the electric connection, the petitioner had approached this Court by filing W.P(c) No.35403 of 2007. The said Writ Petition was disposed of by Ext.P6 judgment directing the petitioner to remit an amount of Rs.75,000/- as a condition for the continued electric connection. Accordingly, by Ext.P7 cheque the petitioner has paid the said amount. Thereafter, the appeal was considered and by Ext.P8 order, Ext.P4(a) bill has been confirmed. Pursuant to Ext.P8, the petitioner has been issued with a demand, Ext.P9 and Ext.P9(a) bill. W.P(c) No.13129 of 2008 has been filed **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 3 challenging Exts.P9 and P9(a). The bills issued and demands made for the period subsequent to the filing of the above Writ Petition are under challenge in W.P(c) No.8779 of 2011. The said subsequent bills and demands are Exts.P12, P13, P14 and P15 in the said Writ Petition. 3. According to Sri P.Haridas, who appears for the petitioners in both the Writ Petitions, on detection of the unauthorised connected load, an assessment has been made under Section 126 of the Act. Under sub Section 5 of Section 126, such an assessment has to be confined over a period of 12 months, immediately preceding the date of inspection. The statutory provision having limited the power of the Assessing Officer in making an assessment to only over the 12 months' period immediately preceding the date of inspection, it is not open to the authorities to demand penal charges for the subsequent period also. They would be entitled to raise such a demand only after conducting a fresh inspection and making a provisional assessment afresh as required by Section 126(1) of the Act. Such a procedure not having been adopted in the above **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 4 case, the demands made for the period subsequent to the date of inspection are all liable to be set aside, it is contended. Decisions of this Court as well as the Honourable Supreme Court are relied upon to contend that the Assessing Authority under Section 126 becomes functus officio, upon making the assessment. Therefore, the procedure contemplated by the said provision comes to an end with the passing of the final order of assessment. Any variation thereof is permissible only on an appeal filed under Section 127 of the Act. 4. Apart from the above, it is contended that the petitioner had applied for the grant of permission for additional connected load as early as on 27.10.2006. Such additional connected load had also been sanctioned. Connection was to be effected by drawing a line over a distance of 450 meters. The petitioner had remitted the estimate amount also. But, thereafter the petitioner sought for a change in the estimate by seeking permission for additional connected load. The said proceedings having been in existence, it is contended that, penalisation of the **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 5 petitioner was uncalled for. Since the additional connected load had been sanctioned to the petitioner as stated above, the finding in Ext.P4 as well as in Ext.P8 that the petitioner had connected unauthorised load, is without any basis. The authorities have failed to take note of the above relevant aspect of the case and have therefore fallen into error, according to the learned counsel. 5. No counter affidavit has been filed in these cases. However, the respective counsel appearing for the Kerala State Electricity Board (hereinafter referred to as `the K.S.E.B' for short) in these cases, Smt.O.H.Nazeeba and Sri T.R.Rajan contend that the petitioner had no authority to connect additional load for the only reason that he had submitted an application for the grant of such permission to the respondents. The additional connected load can be connected and made use of only after the wiring is inspected by the authorities of the K.S.E.B and certified to be proper and safe. In the present case, though the petitioner had been sanctioned additional connected load, the petitioner had, instead of getting the work executed **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 6 and making use of the sanctioned additional power, sought for revising the estimate by a request for additional power. The said request was under consideration. As on the date of inspection therefore, it is contended that, the petitioner had no authority to either install or use the additional connected load that was detected. Therefore the proceedings initiated under Section 126 of the Act was fully justified. 6. Though the petitioner has contended that the additional connected load had been removed, it is pointed out that, no intimation of any such act has been given to the respondents at any time. Therefore as long as the additional connected load was remaining connected and in use without authorisation, it was liable to be charged at the penal rates. For the above reason, it is contended that the bills that are under challenge have been issued properly and therefore, the counsel seek dismissal of the Writ Petitions. 7. Heard. The fact that an inspection of the premises of the petitioner was conducted by the A.P.T.S on **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 7 13.11.07 is admitted. A perusal of Ext.P3 mahazar shows that energy from the service connection provided to the petitioner was being used for energising various facilities like the Hostel for students as well as Teachers, the Mess Hall, Study Hall, Canteen etc. that were provided within the campus. Various electrical equipments accounting for substantial additional load were also seen connected. They are all noted and itemised in Ext.P3. It is on the basis of the inspection by the ATPS that Ext.P4 Assessment Order was made and Ext.P4(a) bill served on the petitioner. The appeal Ext.P5 shows that the main contention of the petitioner was only that though the additional equipments had been connected, they had not been commissioned and that they would be operated only after getting the necessary permission from the K.S.E.B. The matter has been considered by the appellate authority by Ext.P8 and confirmed. The objection of the petitioner is against Ext.P9 demand that has been issued pursuant to Ext.P8. Ext.P9 is attacked as unsustainable for the main reason that, it covers even the period after the date of inspection by the **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 8 A.P.T.S. 8. As already noticed above, the contention of the learned counsel for the petitioner is that, the assessment under Section 126 of the Act having been completed, the penal charges cannot be levied for the subsequent period without a proper assessment as contemplated by Section 126(1). A perusal of Section 126 shows that, the said provision deals with the detection of unauthorised consumption of electrical energy by a consumer. Sub Section 5 of Section 126 provides that where it is not possible to ascertain and fix the period over which the unauthorised consumption of energy has taken place, the assessment has to be made limiting the previous 12 months' period of the date of inspection, as the period of unauthorised use of the electrical energy. It is clear from the above that, even in the case of detection of unauthorised use of electrical energy where the period can be ascertained, the penal charges are to be levied for the actual period of unauthorised use, irrespective of whether such period exceeds the previous 12 months' period of **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 9 connection. It is clear from the above that the said provision does not apply to a situation where the period of use of unauthorised electrical energy is capable of being ascertained. 9. In the present case, the contention of the learned counsel appearing for the K.S.E.B is that, after detection of the unauthorised connected load, the petitioner has neither sought for regularisation thereof, nor informed the authorities that the unauthorised connected load was removed. Therefore, the only conclusion possible is that, the unauthorised connected load has continued to remain connected and in use, as on the date of detection. The situation in the present case therefore is that, the period of use of unauthorised connected load after the date of inspection is capable of being ascertained and billed. It is accordingly that the subsequent bills have been issued covering the period after the date of inspection also. Those are, Exhibits P12, P13, P14 and P15 in W.P(c) No.8779 of 2011. Though the learned counsel for the petitioner has contended that the unauthorised connected load that was **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 10 detected has been removed, there is no evidence or material to prove the said statement. 10. The learned counsel for the petitioner has placed reliance on the decision of a Division Bench of this Court in **KSEB v. Najeeb** [2005 KHC 67] to contend that the penalty for unauthorised use of electrical energy can be levied only for the period stipulated by Section 126 of the Act. The decision in **Jomy Thomas Manjooran v. Kerala State Electricity Board** [2013(1) KLT 595] where a learned Single Judge of this Court has held that Section 126 is a complete code, is also relied upon. It is contended by the learned counsel that the Assessing Officer becomes functus officio on a provisional assessment being made. The decision of the apex court in **Southern Electricity Supply Company of Orissa Ltd. v. Sri Seetaram Rice Mill** [2012 (2) KLT Suppl. 30(SC)] is pressed into service to put forward a contention that, unauthorised use of electrical energy that is contemplated by Section 126 of the Act is different from theft of electrical energy that is contemplated by Section 135 of the Act. In Section 135 of the Act, a ## **W.P(c) Nos.13129 of 2008-K W.P(c) No.8779 of 2011-V** 11 conscious intent or a mental element to commit theft of energy by using artificial devices is necessary, which is absent in Section 126. There cannot be any quarrel regarding the above propositions. However, they do not arise in the factual situation of the present case. Therefore, I refrain from considering the dicta laid down by the said decisions relied upon, at any length. The result of the above discussion is that, inasmuch as the petitioner has not produced any document or evidence to substantiate his contention that the unauthorised connected load that was detected was subsequently removed, the respondents are justified in issuing the penal bills for the subsequent period also. The unauthorised connected load would continue to be unauthorised, until the same is regularised or removed. In view of the above, I do not find any grounds to grant any of the reliefs sought for in these Writ Petitions. The Writ Petitions are hence dismissed. Sd/- ## _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/