Raju M. Koshy v. Kerala State Electricity Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940** **WP(C).No. 9478 of 2011** ## **PETITIONER** **RAJU.M.KOSHY., HERMON, 34/383 PADIVATTOM, EDAPPALLY P.O., KOCHI - 24.** **BY ADV.SRI.JOSE J.MATHAIKAL** ## **RESPONDENTS:** **1. KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM,, REPRESENTED BY ITS SECRETARY. PIN- 695 001** **2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION,, KERALA STATE ELECTRICITY BOARD, PALARIVATTOM, KOCHI - 25.** **R1-R2 BY SRI.T.R.RAJAN,SC,K.S.E.B. SRI.V.V.BINU, SC, SRI.P.P.THAJUDEEN, SC, K.S.E.B** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** **13.06.18** **WP(C).No. 9478 of 2011** ## **APPENDIX** **----------** ## **PETITIONERS EXHIBITS** **-----------------EXT.P1 TRUE COPY OF THE NOTICE DTD 4.3.2011 EXT.P2 TRUE COPY OF BO DATED 7.2.2008 EXT.P3 TRUE COPY OF THE DEMAND DATED 17.05.2011** **RESPONDENTS EXHIBITS -----------------------** **EXT.R1(A) TRUE COPY OF THE BILL DATED 22.07.2006 ISSUED BY THE 2ND RESPONDENT** **/TRUE COPY/ PA TO JUDGE** **sdr/13.06.18** **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 9478 of 2011 ================== Dated this the 30[th] day of May, 2018 **J U D G M E N T** The petitioner is a domestic consumer of the electricity supplied by the respondent Kerala State Electricity Board. It appears that the petitioner was using the premises owned by him. The electricity charges payable for the said connection was one treating as a domestic connection. Later the petitioner had rented out his house to another person, who in turn was using the premises for commercial purpose and the tariff made applicable by the respondent KSEB authorities was as commercial one under tariff LT 7A. While so, an inspection was conducted by the respondent KSEB authorities on 21.7.2006 in respect of the abovesaid premises and this led to the detection of an unauthorised load of 15KW. The sanctioned/ authorised load for the commercial tariff that was being enjoyed by the tenant in question was 9 KW. Whereas the squad inspection that was held on 21.7.2006 had found that the connected load being used in the premises was 24 KW. It is on this basis that it was found that the unauthorised load is 15 KW, as aforesated. Thereupon, based on the said inspection report dated 21.7.2006, the respondent KSEB authorities had imposed proportionate penalty on fixed charges for W.P.(C).9478/11 - : 2 :- the relevant period based on the inspection report dated 21.7.2006 as per Ext.R-1 (a) bill dated 21.7.2006 for amount of Rs. 4,500/-. The said bill was admittedly paid by the petitioner concerned. It is also admitted by the respondent KSEB authorities that the proportionate penalty amount on the fixed charges was also being continuously paid in respect of the above premises for the succeeding months also, which according to the KSEB authorities, was for the subsequent periods from 15.6.2007 to 12.7.2008. Later, it appears that the tenant had vacated the abovesaid premises and the petitioner had converted the consumer connection as one for domestic tariff under LT-IA. 2. Long after the payment of the penalty for the fixed charges as per Ext.R-1 (a) bill dated 21.7.2006, pursuant to the inspection report dated 21.7.2006 and also much after the payment of penalty for the fixed charges for the subsequent periods in question (from 15.6.2007 to 12.7.2008) the 2[nd] respondent had issued the impugned Ext.P-1 bill dated 4.3.2011 to the petitioner which is under challenge in this writ proceedings. 3. Ext.P-1 bill dated 4.3.2011 has been issued on the premise that though the petitioner had paid the penalty on the fixed charges as per Ext.R-1 (a) and though the proportionate penalty on the fixed W.P.(C).9478/11 - : 3 :- charges for the subsequent period from 15.6.2007 to 12.7.2008 has been paid, the proportionate current charge for the unauthorised load portion was not assessed by the KSEB authorities for the subsequent period from 15.6.2007 to 12.7.2008 and that the bill amounts in respect of Ext.P-1 is raised on that count. A total amount of Rs. 1,16,170/- is thus raised and demanded for the petitioner's premises as proportionate current charge for the unauthorised load portion for the period from 15.6.2007 to 12.7.2008. This is under challenge in this Writ Petition. The prayers in this Writ Petition (Civil) filed on 24.3.2011 are as follows: _“i. to issue a writ of certiorari or such other appropriate writ order or direction calling for the records relating Exhibit P-1 and to quash the same._ _ii. to issue a writ of certiorari or such other appropriate writ order or direction calling for the records relating to Exhibit P-2 Board order and to quash the same._ _iii. to declare that clause 51 of the Terms and Conditions of Supply 2005 framed by the 1[st] respondent as unconstitutional and illegal and not authorized by the provisions of the Electricity Act 2003.”_ 4. Heard Sri.Jose J.Matheikel, learned counsel appearing for the petitioner and Sri.V.V.Binu, learned Standing Counsel appearing for the respondent KSEB. 5. At the outset it is to be noted that the respondent KSEB authorities have no case whatsoever that proportionate current charge for the unauthorised load portion for the period covered by W.P.(C).9478/11 - : 4 :- Ext. R-1 (a) bill dated 21.7.2006 has been raised and demanded from the petitioner. The only case of the respondent KSEB authorities is that the proportionate current charge for the subsequent period from 15.6.2007 to 12.7.2008 has not been assessed and demanded from the petitioner and that Ext.P-1 bill for Rs. 1,16,170/- has been so demanded for that purpose for the abovesaid subsequent period in question. The respondent Board authorities would endeavour to justify their imposition of Ext.P-1 bill as proportionate penalty for the current charge for the abovesaid subsequent period on the basis of Ext.P-2 Board order BO(FM) No.368/2008(DPC1/C-G1/182/2007) dated 7.2.2008. Ext.P-2 Board order dated 7.2.2008 reads as follows: ## _“ORDER_ _The Executive Engineer, Electrical Division, Ponkunnam sought clarification regarding the methodology to be adopted while issuing penal bills in the case of unauthorized additional load. The Kerala State Electricity Regulatory Commission clarified vide letter read as 2[nd] paper that penalty rate is applicable to both fixed and energy charges for the unauthorized use of Electricity as per sub-section (6) of Sn.126 of Electricity (Amendment) Act 2007 which states that the assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub section (5). As per sub section (5) of section 126 of the Electricity (Amendment) Act 2007, If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. The appointed date for bringing into force the Electricity (Amendment) Act 2007 is 15.06.2007._ _Having considered the matter, the Board hereby orders that the field officers shall strictly follow the provisions of the Electricity Act, 2003 (sub sections (5) and (6) of section 126 of Electricity (Amendment)_ W.P.(C).9478/11 - : 5 :- _Act 2007, i.e. two times the respective tariff for the entire period and in case the said period cannot be ascertained for a period of 12 months) for assessing penalty in the case of misuse of energy and unauthorized use of energy including unauthorized additional load, unauthorized extension and meter tampering cases detected. Penalty rate shall be applicable to both fixed and energy charge for the unauthorized use. Penalty charges for current charges shall be levied for proportionate energy charge and normal current charge collected shall be deducted._ _This order shall be effective from 15.06.2007.”_ ## 6. Sub sections (5) and (6) of Sec.126 of the Electricity Act, ## 2003 read as follows: _“_ _**Sec. 126: Assessment**_ _(1) ...._ _xxx xxx xxx_ _(5) 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 a period of twelve months immediately preceding the date of inspection._ _(6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).”_ 7. The issue raised in this writ proceedings is covered by the legal principles laid down by the Division Bench of this Court in the case in _**Sulabha Marketing (P) Ltd. v. KSEB & others**_ , reported in 2017 (3) KHC 503 DB. Paragraph 31(vi) of the abovesaid judgment in _**Sulabha Marketing Prv. Ltd.'s case**_ supra, reported in 2017 (3) KHC 563, pp.597, 598, reads as follows: W.P.(C).9478/11 - : 6 :- _“31. For the reasons stated hereinbefore, we hold as follows;_ **==> picture [52 x 11] intentionally omitted <==** _(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 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._ Therefore, to get the benefit of the directions issued in Clause (vi) of para 31 of the judgment in _**Sulabha Marketing Pvt. Ltd's case supra**_ , it has to be ascertained whether extra load is for the use for the very same premises and the very same purpose and further that the regularization of the extra load should not necessitate upgradation of the existing distribution system. It is admitted by the both sides that the load in question is for the very same premises owned by the petitioner. Further it is also admitted by the respondent KSEB authorities that the connection was enjoyed by the tenant consumer concerned, who was occupying the petitioner's premises for commercial purpose and under tariff LT VIIA. Further it is also the admitted case of both sides that the unauthorised load was also in respect of commercial purpose. The respondent KSEB authorities do W.P.(C).9478/11 - : 7 :- not have a case that the regularization of the extra load in question had necessitated upgradation of the existing distribution system. No such case is put forward by the respondent KSEB authorities either in the impugned proceedings or in the averments in the counter affidavit filed in this case. Therefore, the factual scenario conceived in the directions issued in the Division Bench judgment in _**Sulabha Marketing Pvt. Ltd.'s case**_ supra in Clause (vi) of para 31 of the said judgment would squarely apply to the facts this case. Going by the said legal principle, Ext.P-2 Board order is valid, but subject to the abovesaid modification or exemption conceived in clause (vi) of para 31 of the said judgment. On that ground alone, the impugned demand as per Ext.P-1 is liable to be interfered with by this Court. 8. The scenario could have been slightly different and the matter should have been remitted, if the factual aspect as to whether or not the petitioner had paid the penalty on the proportionate fixed charges continuously for the subsequent period after Anx. R-1 (a) bill i.e. for the period from 15.6.2007 to 12.7.2008. So also, if that factual aspect has not been clear, then the matter would have a remit so as to enable the respondent KSEB authorities to ascertain that aspect. However, in the instant case, the respondent KSEB authorities in the averments in para 5 on page 2 of their counter affidavit dated W.P.(C).9478/11 - : 8 :- 29.7.2014 has clearly admitted that the petitioner had paid the penalty on the fixed charges continuously in the succeeding months after the issuance of Anx. R-1(a). Therefore, it is beyond doubt that the petitioner's case is covered by the factual scenario conceived in Clause (vi) of para 31 of the Division Bench in _**Sulabha Marketing Ltd.'s case**_ supra. 9. Sri.V.V.Binu, learned Standing Counsel for the respondent KSEB authorities has placed reliance the judgment of a learned Single Judge of this Court in _**P.Sunderdas v. Kerala State Electricity Board & Anr.**_ reported in 2009(1) KHC 945 for contending that the period of limitation has not arisen in this case, as conceived in Sec. 56. On a perusal of the said judgment, this Court is of the view that the ratio of that decision does not apply to the facts and circumstances of this case. In the instant case, the respondent KSEB authorities were fully aware about the unauthorised load at least from 21.7.2006 based on their inspection report. 10. There is yet another aspect of the matter regarding the bar of limitation as against the impugned demand made as per Ext.P-1. Sec. 56(2) of the Electricity Act, 2003, mandates as follows: _“Sec. 56: Disconnection of supply in default of payment.- (1)....._ _(2) Notwithstanding anything contained in any other law_ W.P.(C).9478/11 - : 9 :- _for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.”_ In the instant case, it is the admitted case of the respondent KSEB authorities that they had conducted an inspection on 21.7.2006 and Anx. R-1 (a) bill dated 21.7.2006 for Rs. 4,500/- was paid by the petitioner as penalty on the fixed charges for the period in question prior to the inspection report dated 21.7.2006. It is also the admitted case of the respondent KSEB authorities that the petitioner had also paid the penalty on the fixed charges continuously in the succeeding months also. According to the KSEB, the said subsequent period is from 15.6.2007 to 12.7.2008. Assuming for a moment that the respondent KSEB authorities were competent in the facts of this case to validly make a demand for the penalty for the current/energy charges for the abovesaid subsequent period, then the said demand should have been made within a period of two years, as conceived in sub section (2) of Sec. 56. The said limitation of two years in respect of the subsequent period from 15.6.2007 to 12.7.2008 has expired on various dates between 15.6.2009 to 12.7.2010. Admittedly, the impugned demand as per Ext.P-1 has been made only on 4.3.2011. The respondent KSEB authorities were aware about the matters W.P.(C).9478/11 - : 10 :- relating to the unauthorised load taken by the tenant in the petitioner's premises as borne out by the inspection report dated 21.7.2006. They were also aware that the penalty on the fixed charges were also being demanded and paid for the subsequent period in question, as aforestated. Therefore, all these aspects were very much within the knowledge of the respondent authorities and therefore even if it is assumed that the respondent KSEB authorities were competent to make such a demand in respect of penalty for the energy charges, then the said demand is now barred by limitation in view of the abovesaid aspects. For this reason also, the impugned demand is liable to be interfered with. Accordingly, the impugned demand as per Ext.P-1 bill will stand quashed. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge