S.M. Abdul Majeed v. Assistant Engineer, Kerala State Electricity Board, Electrical Section, Wadakkancherry & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935** ## **WP(C).No. 15673 of 2013 (H)** ## **----------------------------** **PETITIONER(S): --------------------------** **S.M.ABDUL MAJEED, PROPRIETOR, M/S. S.M.STEEL RE-ROLLING MILLS, ENKEKKADU P.O., WADAKKANCHERRY, THRISSUR DISTRICT.** **BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON** ## **RESPONDENT(S):** - **----------------------------** ## **1. THE ASSISTANT ENGINEER,** - **KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, WADAKKANCHERRY, THRISSUR DISTRICT-680 582.** ## **2. DEPUTY CHIEF ENGINEER,** - **KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, IRINJALAKUDA, THRISSUR DISTRICT-680 121.** ## **3. SPECIAL OFFICER REVENUE,** - **KERALA STATE ELECTRICITY BOARD, OFFICE OF SPECIAL OFFICER(REVENUE), VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695 004.** **4. KERALA STATE ELECTRICITY BOARD, OFFICE OF SPECIAL OFFICER(REVENUE), VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS SECRETARY.** **R1 TO R4 BY ADV. SMT.NAZEEBA.O.H., SC, K.S.E. BOARD SRI.JAICE JACOB,SC,K.S.E. BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** **WP(C).No. 15673 of 2013 (H) -----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS:** **----------------------------------------** **EXT.P1 COPY OF HT AGREEMENT EXECUTED BY THE RESPONDENT AND PETITIONER.** **EXT.P2 COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 07/07/2012. EXT.P2(a) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 07/08/2012. EXT.P2(b) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 07/09/2012. EXT.P2(c) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 05/10/2012. EXT.P2(d) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 06/11/2012. EXT.P2(e) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 04/12/2012. EXT.P2(f) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 01/01/2013. EXT.P2(g) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 05/03/2013. EXT.P2(h) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 05/04/2013. EXT.P2(i)COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 08/05/2013. EXT.P2(j) COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 07/06/2013. EXT.P3 COPY OF MAHAZAR PREPARED BY THE 1ST RESPONDENT DTD.09/10/12. EXT.P4 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DTD. 20/12/2012. EXT.P5 COPY OF BILL ISSUED BY THE 1ST RESPONDENT DTD. 22/12/2012.** **EXT.P5(a) COPY OF CALCULATION STATEMENT ISSUED BY 1ST RESPONDENT. EXT.P6 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DTD.30/04/2013. EXT.P7 COPY OF LETTER ISSUED BY THE 3RD RESPONDENT DTD. 04/06/2013.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** ## **R1(A): COPY OF NOTICE DTD. 1/01/2011.** **R1(B): COPY OF NOTICE DTD. 09/06/2011.** **R1(C): COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **C.K. ABDUL REHIM,J** ## **-------------------------------------** W.P.(C). No.15673 OF 2013 ----------------------------------------Dated this the 18[th] day of October, 2013 ## JUDGMENT Penalty imposed under Section 126 of the Electricity Act 2003 by virtue of Ext.P4 proceedings of the Ist respondent, which was confirmed in appeal by the 2[nd] respondent in Ext.P6 order, is under challenge in this writ petition. 2. The petitioner is an HT industrial consumer commenced production during November, 2010. Penalty was imposed on the basis of an inspection conducted on 9.10.2012. Ext.P3 is the Site Mahazar prepared at the time of inspection. All the installations in the premises were counted for the purpose of computing total connected load. Penalty was imposed on the premise that the total connected load of 259.672 KW which corresponds to 288.524 KVA detected at the inspection had exceeded the authorised load of 188.954 KW corresponding to 209.949 KVA. Therefore alleging usage of unauthorised additional W.P.(C). No.15673 OF 2013 2 load to the tune of 70.718 KW, penalty at two times of the demand charges for the unauthorised additional load along with proportionate energy charges on the unauthorised additional load, for a preceding period of 12 months was imposed. Aggrieved by Ext.P4 order finalising the penalty, an appeal under Section 127 was preferred before the 2[nd] respondent. Ext.P6 is the order passed by the Appellate Authority. Penalty imposed by the first respondent was confirmed. Challenging Exts.P4 and P6 this writ petition is filed. 3. Grounds of challenge are many folded. On the facts it is enumerated that notices were issued to the petitioner on 1.1.2011 and on 9.6.2011, informing about exceeding of the Maximum Demand above the contract demand. Through, Ext. R1(a) notice dated 1.11.2011 the petitioner was requested to enhance the Contract Demand urgently. So also in Ext.R2(b) notice dated 9.6.2011, the petitioner was required to regularise the additional connected load. According to the petitioner, on receipt of 3 W.P.(C). No.15673 OF 2013 Ext.R2(a) notice he had applied for enhancement of the Contract Demand to 255 KW. It is also contended that the scheme submitted for sanctioning additional load was approved by the Electrical Inspectorate. However, it is noticed in Ext.P6 that the application was subsequently rejected on the basis that the Maximum Demand recorded had indicated excess usage than 255 KVA. 4. One of the contention raised is that, when the petitioner had already applied for enhancement of the Contract Demand and when approval was obtained for the scheme submitted, the penalisation imposed cannot be sustained on the basis that there was unauthorised connected load. But this Court is of the opinion that, the reasoning mentioned in Ext.P6 is sustainable. Merely because a notice is issued requiring the consumer to enhance the Contract Demand and merely because he had submitted an application in compliance of such notice, the consumer is not entitled to install unauthorised connected load or to use the same. Even though an approval of the 4 W.P.(C). No.15673 OF 2013 scheme was obtained from the Electrical Inspectorate, the terms and conditions of the supply and the contract based on which the supply is provided insists upon getting approval from the authorities of the K.S.E.B. before connecting any additional load. 5. The petitioner made reference to Regulation 51(5) of the K.S.E.B. Terms and Conditions of Supply, 2005. It insist upon the authorities to disconnect supply if unathorised load is detected and when the consumer fails to disconnect such additional load within 24 hours in compliance with any notice issued in this regard. Merely because, the authorities have failed to take any coercive action under Regulation 51(5), despite detection of additional load, it cannot be contented that the consumer should be exonerated from the penal provisions under section 126. This is because the authorised officer is entitled to impose penalty when he had arrived at a conclusion that the consumer was indulging in unauthorised use of electricity, as held by the Hon'ble Supreme Court in W.P.(C). No.15673 OF 2013 5 _**Executive Engineer and Others v Seetaram Rice Mill (2011 KHC 4978).**_ Any usage of energy for purposes other than which was authorised will amount to unauthorised usage as explained in Sub section (6) (b) (iv) of Section 126. Hence the petitioner cannot find rescue under Regulation 51(5) alleging inaction for disconnection of supply. 6. Yet another contention raised is based on Ext.P2 series monthly bills. It is pointed out that, excess demand charges than the normal tariff were already levied at different multiplier on the basis of Maximum Demand recorded which had exceed the Contract Demand. Hence, it is contended that the excess load had already been penalised and there cannot be double penalisation under Section 126. But it is noticed that the Demand Charges at the enhanced rate was collected only by virtue of terms of the contract. In Clause 15 of Ext.P1 agreement it is mentioned that the consumer will be liable to pay charges for excess demand drawn, at 150% of the Demand Charges W.P.(C). No.15673 OF 2013 6 notified by Board from time to tome or at such other revised percentages as fixed by the Board from time-to-time. Therefore, it is evident that the enhanced rate of Demand Charges collected on the basis of the Maximum Demand exceeding the Contract Demand cannot be considered as a penalty imposed. Penalty under Section 126 is contemplated as a penal action for unauthorised use of electricity. Therefore contention in this regard cannot be countenanced. 7. The petitioner had pointed out that, after conducting inspection and after imposing penalty the respondents have permitted enhancement of the connected load/contract demand, and hence there is no justification in imposing penalty. A subsequent enhancement of the connected load or regularisation of the unauthorised load will not in any manner exonerate the petitioner from the liability. 8. In the above mentioned circumstances, I do not find any reason to interfere with the imposition of penalty 7 W.P.(C). No.15673 OF 2013 which is confirmed in appeal. However, learned Counsel for the petitioner made an appeal for indulgence to waive interest for the period after the impugned order, as directed in Ext.P6, on the basis that he was pursuing challenges in the writ petition. I am of the considered opinion that the petitioner can be exonerated from the liability for payment of any interest, if the balance amount as demanded in Ext.P7 is remitted within a period of two months. The petitioner is permitted to make payment of the balance amount demanded in Ext.P7 in two equal monthly instalments falling due on or before 15.11.2013 and on or before 15.12.2013. Needless to observe that on failure, he will be liable for payment of interest due from today onwards. Sd/- ## **C.K. ABDUL REHIM, JUDGE.** /True Copy/ P.A. To Judge SKV