RP.No.12 of 2016(A) in WP(C). 29604/2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** ## **RP.No.12 OF 2016(A) IN WP(C). 29604/2010** **AGAINST THE JUDGMENT IN WPC 29604/2010 DATED 18-06-2015 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/RESPONDENTS:** - **1 KSEB, REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVAN, THIRUVANANTHAPURAM.** - **2 THE ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, KOLLAKADAVU.** - **3 THE ASSISTANT ENGINEER ELECTRICAL, SECTION KOLLAKADAVU.** - **4 DEPUTY CHIEF ENGINEER ELECTRICAL, CIRCLE, ALAPPUZHA.** **BY ADV. SMT.P.K.RADHIKA-KSEB** **SRI ARUN KUMAR A- STANDING COUNSEL FOR KSEB** ## **RESPONDENT/PETITIONER :** **SAJI T.GEORGE THEKKETALAKKAL, VETTIYAR, MAVELIKKARA.** **R BY ADV. SRI.R.KRISHNA RAJ R BY ADV. SMT.E.S.SONI** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 13.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 2 ## **JUDGMENT** The review petitioners, who are the respondents in W.P.(C)No.29604 of 2010, have filed this review petition under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 seeking an order to review the judgment of this Court dated 18.06.2015 in that writ petition, by contending that, while setting aside the penal demand made in Exts.P3 and P4 and also Ext.P6 order, relying on the judgment in **Jomy Thomas Manjooran v. Kerala State Electricity Board [2013 (1) KLT 595]** , they are not granted the right to assess the unauthorised additional load of the writ petitioner, as provided under sub-section (5) of Section 126 of the Electricity Act, 2003. Therefore, there is an error apparent on the face of the record, warranting interference, in exercise of the review jurisdiction under Order XLVII Rule 1 of the Code. 2. Heard the learned Standing Counsel for the Kerala State Electricity Board, representing the review petitioners, and also the learned counsel for the writ petitioner. R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 3 3. The writ petitioner is a consumer under the 3[rd] petitioner with Consumer No.4447, who filed W.P.(C)No. 29604 of 2010 seeking a writ of certiorari to quash Ext.P6 order passed by the 2[nd] review petitioner and seeking a writ of mandamus commanding the 3[rd] review petitioner to reconsider Ext.P5 objection. 4. On 24.09.2010, while admitting the matter on file, this Court granted an interim order directing the review petitioners to reconnect electrical connection to Consumer No.4447 before 2.00p.m, on 25.9.2010. The writ petitioner was directed to pay 25% of the amount demanded as per Ext.P4 on or before 28.9.2010, along with reconnection charges. It was made clear that, in case the writ petitioner fails to comply with the above directions, it will be open to the review petitioners to disconnect the electric connection to Consumer No.4447. 5. By the judgment dated 18.06.2015, this Court allowed W.P.(C)No.29604 of 2010 by setting aside the penal demand made in Exts.P3 and P4 and also Ext.P6 order passed by the 3[rd] review petitioner. In the said R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 4 judgment, it was made clear that, any amount collected from the writ petitioner towards the penal charges demanded pursuant to Ext.P4 demand notice shall be adjusted by the 2[nd] review petitioner, in future bills in respect of Consumer No.4447. Paragraphs 4 to 6 and also the last paragraph of the judgment read thus; “4. From the averments in the writ petition, it can be seen that on 23.7.2009, an inspection was conducted in the premises with Consumer No.4447, in which additional connected load was detected. Ext.P2 is the site mahazar prepared based on such inspection. The petitioner was issued with Ext.P3 provisional demand and Ext.P4 demand-cum-disconnection notice demanding a sum of 73,000/-, levying penal charges under LT-₹ VIII tariff for unauthorised extension. The petitioner submitted Ext.P5 objection against provisional assessment made in Ext.P3, which was rejected and the provisional assessment was confirmed by Ext.P6 order. It is aggrieved by Ext.P6 order, the petitioner is before this Court in this writ petition. 5. The issue raised in this Writ Petition is covered against the Board in the judgment of this Court in **Jomy Thomas Manjooran v. Kerala State Electricity Board [2013 (1) KLT 595]** , in which R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 5 it was held that in the absence of any provision enabling the Board to levy energy charges under LT-VIII tariff for unauthorised extension, billing of penal rates on the basis of connected load, on a daily basis is impermissible. 6. In such circumstances, this Writ Petition is allowed setting aside the penal demand made in Exts.P3 and P4 and also Ext.P6 order passed by the 3rd respondent. It is made clear that, any amount collected from the petitioner towards the penal charges demanded pursuant to Ext.P4 demand notice shall be adjusted in the future bills issued in respect of Consumer No.4447, by the 2[nd] respondent.” 6. As borne out from the pleadings and materials on record, in the inspection conducted on 23.07.2009, in the writ petitioner's premises with Consumer No.4447, additional connected load was detected, as the he had unauthorisedly extended the electric line to the nearby building of St. Mary's Central School, a Lower Primary School run by him. Ext.P2 is the site mahazar prepared based on such inspection, in which an additional connected load of 1,480W was detected. The writ petitioner was issued with Ext.P3 provisional demand and Ext.P4 demand-cum-disconnection notice, demanding a ## R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 6 sum of 73,000/-, levying penal charges under LT-VIII₹ tariff for unauthorised extension. As per Ext.P5 objection by the mother of the writ petitioner, the plug socket found on the outer wall of the school building was fixed for the purpose of connecting generator, when the school building is let out for functions. 7. In **Jomy Thomas Manjooran** this Court held that the levy of charges under LT-VIII Tariff in the case of unauthorised extension is legally unsustainable. As held in **J.D.T. Islam Orphanage Committee v. The Assistant Engineer, KSEB and others [2007 (3) KLT** **388]** the tariff under LT-VIII is provided for authorised temporary extensions for short spell by enabling payment of fixed charges on the additional connected load, whereas in the case of unauthorised extensions the penal assessment is made for unauthorised use of electricity for a considerably long period, at the rate applicable at two times, as envisaged under sub-section (5) of Section 126 of the Electricity Act. Therefore, the charges levied for temporary extensions on daily rental basis cannot be R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 **==> picture [8 x 8] intentionally omitted <==** adopted for imposing penalty when unauthorised extension is detected. This Court held further that, the 2[nd] respondent Assessing Officer is not empowered to revise, reopen or rectify the assessment of penalty once finalised under Section 126 of the Electricity Act 2003, especially on the basis of an instruction issued by the Audit Officers, because of lack of jurisdiction conferred under the statute enabling such revision, reopening or rectification. Paragraphs 9, 10 and 11 of the said decision ## read thus; “9. In the case at hand, pursuant to an inspection conducted, penalty was imposed alleging unauthorised use of electricity, on the basis of the allegation that the connection was unauthorisedly extended to another premises. The assessment of electricity charges payable was computed at twice the rate of fixed charges for the additional unauthorised load and at the proportionate energy charges on the unauthorised load payable. In the impugned proceedings, the Assessing Officer is now proposing to adopt another method of assessment, that too on the basis of directions of the Audit Officers, on the premise that unauthorised extension ought to have been charged at the Tariff provided for authorised R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 8 temporary extensions under LT-VIII. An identical situation has been dealt with by this Court in the decision in **J.D.T. Islam Orphanage Committee v. The Assistant Engineer, KSEB and others [2007 (3) KLT 388]** . Referring to Regulation 26 of the erstwhile 'Conditions of Supply of Electrical Energy', this Court held that, in the absence of any provision enabling the Board to levy energy charges under LT-VIII Tariff for unauthorised extension, billing at penal rates on the basis of connected load, on a daily basis is impermissible. This Court observed that LT-VIII Tariff is meant for temporary extensions and is applicable only to temporary extensions taken from the consumers premises. There the Tariff is computed on fixed charge per KW of connected load, per day, in addition to application fee and testing fee. Under such temporary extensions there is no measurement of the quantity of energy by a separate meter, because the consumption is recorded in the meter installed at the main premises itself. The charges are limited to the extent of load covered by the temporary extension and limited to the period of such temporary extensions. The said tariff provided for authorised extensions cannot be made applicable to unauthorised extensions, is the findings. This Court found that the term 'respective tariff' under Regulation 42(d) denotes only the tariff at which R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 9 the quantity of supply at the main premises is billed. Therefore, penalisation on the basis of charges leviable for temporary extensions was held to be unsustainable. Learned counsel for the petitioner pointed out that the above decision was confirmed in W.A.No.607 of 2008 (judgment dated 05.07.2012) by a Division Bench of this Court. Therefore it is evident that the levy of charges under LTVIII Tariff in the case of unauthorised extension is not sustainable. 10. Learned Standing Counsel appearing for the respondents pointed out that, the legal position settled as above will lead to an anomalous situation where a consumer indulging in unauthorised extension of the connection provided to him can be charged only with less amounts than the charges payable by another consumer taking temporary extension in an authorised manner. As held in **J.D.T. Islam's case** (cited supra) the Tariff under LTVIII is provided for authorised temporary extensions for short spell by enabling payment of fixed charges on the additional connected load, whereas in the case of unauthorised extensions the penal assessment is made for unauthorised use of electricity for a considerably long period at the rate applicable at two times, as envisaged under sub-section (5) of Section 126. Therefore, the charges levied for temporary extensions on daily rental basis cannot R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 **==> picture [14 x 8] intentionally omitted <==** be adopted for imposing penalty when unauthorised extension is detected. The decision in **J.D.T. Islam's case** (cited supra) confirmed by the Division Bench will squarely apply, since the provisions contained in Electricity Act, 2003 and the supply code 2005 and the KSEB terms and conditions of supply are in 'pari materia' with the provisions contained in the erstwhile 'Conditions of Supply of Electrical Energy'. 11. Conclusions on the basis of the above discussions is that, the 2[nd] respondent is not empowered to revise, reopen or rectify the assessment of penalty once finalised under Section 126 of the Electricity Act 2003, especially on the basis of an instruction issued by the Audit Officers, because of lack of jurisdiction conferred under the statute enabling such revision, reopening or rectification. Further the 2[nd] respondent cannot impose penalty at the rate applicable to LT- VIII Tariff on the basis that unauthorised extension was detected at the time of inspection. Therefore, it is held that Exhibit P11 is unsustainable in law, and hence the same is hereby quashed.” 8. In **Jomy Thomas Manjooran** , relying on the decision in **J.D.T. Islam Orphanage Committee** , this Court held that, the tariff under LT-VIII is provided for authorised temporary extensions for short spell by R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 11 enabling payment of fixed charges on the additional connected load, whereas in the case of unauthorised extensions the penal assessment is made for unauthorised use of electricity for a considerably long period, at the rate applicable at two times, as envisaged under sub-section (5) of Section 126 of the Electricity Act. 9. In **Jomy Thomas Manjooran** , this Court held that the Assessing Officer is not empowered to revise, reopen or rectify the assessment of penalty once finalised under Section 126 of the Electricity Act 2003, especially on the basis of an instruction issued by the Audit Officers, because of lack of jurisdiction conferred under the statute enabling such revision, reopening or rectification. Relying on the said decision, the learned counsel for the writ petitioner would contend that, once it is found that the penal demand made under LT-VIII tariff cannot be sustained, the Assessing Officer cannot be permitted to rectify the assessment, at the rate applicable at two times, as envisaged under sub-section (5) of Section 126 R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 12 of the Electricity Act. 10. In **M/s.Classic Color Lab v. Assistant Engineer and others [2014 (3) KHC 136]** , a Division Bench of this Court, after taking note of the arguments advanced on behalf of the appellant/consumer relying on the judgment in **J.D.T. Islam Orphanage Committee** and that of the Calcutta High Court in **Sk. Jafar Ali v. West Bengal State Electricity Distribution Company Limited, [AIR 2010 Cal. 84]** observed that, **J.D.T. Islam Orphanage Committee** is a case under the Electricity Act, 1910, in which an orphanage under LT-VI tariff was assessed for unauthorised extension, by levying LT-VIII tariff applicable to temporary extension. It was not a case in which electricity supplied under LT-VI tariff was used by the consumer for any other purpose attracting higher tariff. 11. In the instant case, the writ petitioner was issued with Ext.P3 provisional demand and Ext.P4 demand-cum-disconnection notice demanding a sum of ₹73,000/-, levying penal charges under LT-VIII tariff for R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 13 unauthorised extension. The provisional assessment was confirmed by Ext.P6 order, which was under challenge before this Court in W.P.(C)No.29604 of 2010. Once it is held, in the judgment sought to be reviewed, that the penal demand made under LT-VIII tariff cannot be sustained, necessarily, the Assessing Officer has to issue a revised demand for unauthorised use of electricity, at the rate applicable at two times, as envisaged under subsection (5) of Section 126 of the Electricity Act. The issuance of a revised demand by the Assessing Officer, as envisaged under sub-section (5) of Section 126 of the said Act, pursuant to the directions contained in the judgment of this Court, cannot be termed as an act of that Authority without jurisdiction. 12. In the judgment sought to be reviewed, after holding that the penal demand made under LT-VIII tariff cannot be sustained, the Assessing Officer was not directed to issue a revised demand for unauthorised use of electricity, at the rate applicable at two times, as envisaged under sub-section (5) of Section 126 of the R.P. No.12 of 2016 in W.P.(C)No.29604 of 2010 **==> picture [14 x 8] intentionally omitted <==** Electricity Act. In the result, this review petition is disposed of by permitting the Assessing Officer to issue a revised demand on the writ petitioner for unauthorised use of electricity, at the rate applicable at two times, as envisaged under sub-section (5) of Section 126 of the Electricity Act, and finalise that demand, in accordance with law, after affording the writ petitioner an opportunity to file objections and personal hearing. The exercise in that regard shall be completed, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV