The Kerala State Electricity Board Ltd. v. Nassar P. and The Consumer Grievance Redressal Forum (Northern Region), Kozhikode and The State Electricity Ombudsman

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 30[TH] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 ``` ## **`WP(C) NO. 33608 OF 2016`** ## **`PETITIONERS:`** - **`1 THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, THE KERALA STATE ELECTRICITY BOARD LTD., PANOOR, KANNUR DISTRICT.`** - **`2 THE ASSISTANT ENGINEER, ELECTRICAL SECTION, THE KSEB LTD, PANOOR, KANNUR DISTRICT.`** ``` BY ADV. SRI. T. R. RAJAN – SC – K.S.E.B. ``` ## **`RESPONDENTS:`** - **`1 SRI. NASSAR P., PULLAMBATH HOUSE, POOKKOM, PANOOR P. O., KANNUR DISTRICT, PIN - 670 692.`** - **`2 THE CONSUMER GRIEVANCE REDDRESSAL FORUM (NORTHERN REGION), KOZHIKODE, REPRESENTED BY ITS CHAIRPERSON, PIN - 673 032.`** - **`3 THE STATE ELECTRICITY OMBUDSMAN, CHARANGATTU BHAVAN, BUILDING NO 34/895, MAMANGALAM - ANCHUMANA ROAD, EDAPPALLY, KOCHI, PIN - 682 024.`** - **`2 THE CONSUMER GRIEVANCE REDDRESSAL FORUM (NORTHERN REGION), KOZHIKODE, REPRESENTED BY ITS CHAIRPERSON, PIN - 673 032.`** - **`BY ADVS. SRI. N.P.MAHABOOB SRI. ZUBAIR PULIKKOOL SRI. ARUNKUMAR A. - SC`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ## **`30.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` WP(C) NO. 33608 OF 2016 ``` ``` 2 ``` ## **DINESH KUMAR SINGH, J.** -------------------------- ## **W.P.(C) No. 33608 of 2016** ------------------------- Dated this the 30[th] day of May, 2024 ## **JUDGMENT** 1. The Kerala Electricity Board has filed this writ petition impugning Exhibit P-10 order passed by the Kerala Electricity Ombudsman whereby the Ombudsman has quashed the final bill of Rs. 4,27,050/- issued to the respondents under Section 126 of the Electricity Act, 2003 (hereinafter referred to as the ‘Act’ for short). However, the Consumer Grievance Redressal Forum (CGRF) has dismissed the petition in O. P. No. 121/201415 vide the Order dated 30.09.2015 in Exhibit P-7. 2. The brief facts of the case are that the 1[st] respondent was provided service connection No.26490 on 29.12.2010 with load of 1200 W under tariff VII. Later on, the said connection was converted to VI tariff. 3. Anti Power Theft Squad conducted surprise inspection in the premises of the 1[st] respondent on 06.01.2015 and it was discovered that the 1[st] respondent had indulged in unauthorised extension for 8.080 KW. The respondent was served provisional bill of Rs. 4,47,050 under Section 126 of the Act and ``` WP(C) NO. 33608 OF 2016 ``` ``` 3 ``` final bill was also for the same amount. Aggrieved by the final bill, the 1[st] respondent filed complaint in O. P. No. 121/20142015 before CGRF, Northern Region, Kozhikode. The Forum held that the CGRF could not have the jurisdiction to decide the dispute in respect of the electricity bill finalised under Section 126 of the Act and, therefore, the CGRF dismissed the complaint. 4. Impugning the order of the CGRF, an appeal was filed before the electricity Ombudsman. However, the Electricity Ombudsman has allowed the appeal vide the impugned order in Exhibit P-10. 5. The learned Counsel for the petitioner Board submits that the CGRF and Ombudsman are creature of the statute i.e. the Kerala State Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulation, 2005. Being the creatures of the Statute, the CGRF and Ombudsman are empowered to exercise the function as assigned to them under the said Regulation. Regulation 2(VII) is specifically provides that the CGRF as well as the Electricity Ombudsman will have no jurisdiction to decide the dispute in respect of unauthorised use of electricity as provided under ``` WP(C) NO. 33608 OF 2016 ``` ``` 4 ``` Section 126 of the Act or imposition of penalties provided under Sections 135 to 139 of the Act and accident in distribution, supply and use of electricity under Section 161 of the Act. Regulation 2(I)(f) defines the complaint which would read as under; “(f) ‘Complaint’ means any grievance made by a compalainant in writing on:- (i) defect or deficiency in electricity service provided by the licensee; (ii) unfair or restrictive trade practices of licensee in providing electricity services; (iii) charging of a price in excess of the price fixed by the Commission for supply of electricity and allied services; (iv) errors in billing; ## (v) erroneous disconnection of supply; (vi) electricity services which are unsafe or hazardous to public life in contravention of the provisions of any law or rule in force; or (vii) any other grievance connected with the supply of electricity by the licensee ``` WP(C) NO. 33608 OF 2016 ``` ``` 5 ``` ## except those related to the following: (1) unauthorised use of electricity as provided under Section 126 of the Act; - (2) offences and penalties as provided under Sections 135 to 139 of the Act and (3) accident in the distribution, supply or use of electricity under Section 161 of the Act.” 6. In the present case, after surprise inspection was made the APTS, the provisional bill was issued and thereafter the final bill under Section 126 of the Act. The Regulations specifically bar the jurisdiction of the CGRF and the Ombudsman for deciding the dispute in respect of the bills issued under Section 126 of the Act. Therefore, I am of the view that the neither the CGRF nor the Ombudsman would have the power to adjudicate the dispute in respect of the bill issued under Section 126 i.e. for unauthorised use of the electricity. The Division Bench of this Court in the case of _**Catholic Reformation Literature Society v. Kerala Electricity Board and Others [2011 (1) KHC 457]**_ in the similar circumstances has held that in respect of a dispute regarding the bill issued under Section 126 of the Act for misuse of electricity, the only remedy is remedy of appeal under ``` WP(C) NO. 33608 OF 2016 ``` ``` 6 ``` Section 127 of the Electricity Act and the CGRF or the Ombudsman will have no jurisdiction. Paragraph Nos. 5 and 6 of the said Judgment which are relevant herein are extracted hereunder; “5. After hearing both sides and on going through the above provisions, we are of the view that remedy available to the appellant against the disputed bill is only an appeal before the statutory authority under Section 127 and no complaint is maintainable before the CGRF, particularly by virtue of the prohibition contained in Clause 2(f)(vii)(1) of the Regulations. It should be noted that Section 126(1) authorises the Assessing Officer to raise a bill after inspection if unauthorised use of electricity by the consumer is found by the Department. The definition of “unauthorised use” under clause (b) of the Explanation to Sub Section (6) of Section 126 specifically covers use of electricity for purposes other than those for which it is permitted or authorised. Tariff classification like domestic, industrial, commercial etc. are prescribed based on use of power by the consumer. When connection is given to the consumer specifying the tariff classification, then the consumer is bound to use the power only for the purposes for which the connection is given, under which tariff the consumer is liable for payment of power charges. The specific allegation of the Assessing Officer in this ``` WP(C) NO. 33608 OF 2016 ``` ``` 7 ``` case is that the nature of use of power by the appellant in the building where coaching is given to the students for preparing for IELTS examination and in the building used as guest house, are unauthorised use of power, in as much as such uses can be termed as commercial purposes falling under LT VII A tariff whereas connection taken is under LT-VI B tariff. Even though learned counsel for the appellant contended that the allegation of misuse or unauthorised use is without any basis, we do not think there is any need for us to consider this question because what we are called upon to decide is only the Forum before which the appellant can redress their grievances against the bill raised after inspection. As already pointed out, the allegation based on which the bill is raised after inspection by the Assessing Officer squarely answers the description of “Unauthorised Use” as defined under Section 126(6) (b) of the Act and clause 2(f)(vii)(i) of the Regulations. It is specifically provided under Section 127(1) of the Act that an appeal is maintainable against any proceedings or bills raised under Section 126 of the Act. 6. The next question to be considered is whether the CGRF also has concurrent jurisdiction, and if so, which Authority should be allowed to decide the matter. In this case, we find force in the contention of the learned Standing Counsel for the KSEB that CGRF has no jurisdiction ``` WP(C) NO. 33608 OF 2016 ``` ``` 8 ``` because under sub clause (vii)(1) of Clause 2(f) of the Regulations, electricity bill raised by the licensee against a consumer for unauthorised use of electricity under Section 126 of the Act is specifically excluded from the scope of “complaint”. On the other hand, electricity bill raised based on allegation ofunauthorised uses, which include use of power for the purposes other than mentioned under the tariff under which connection is given, is an order specifically appealable under section 127 of the Act, which is excluded from the scope of “complaint” covered by Regulations. So much so, in our view, when the Regulations specifically exclude the jurisdiction of the CGRF on all disputes pertaining to bills raised under Section 126 of the Act on allegation of unauthorised use the only remedy available to the appellant against such bill is to file an appeal under Section 127 before the statutory authority. In view of this finding, we disapprove the view expressed in the reported judgment above referred and uphold the judgment of the learned Single Judge impugned in this appeal.” 7. In view of the aforesaid discussion, the present writ petition is to be allowed inasmuch as the impugned order passed by the electricity Ombudsman is wholly without jurisdiction. Thus, the present writ petition stands allowed. The impugned order is quashed. However, it is provided that if the ``` WP(C) NO. 33608 OF 2016 ``` ``` 9 ``` 1[st] respondent files an appeal under Section 127 within a period of fifteen days from today and deposit the 50% of the assessed amount, the appellate authority shall decide the appeal on merit expeditiously, without going into the question of limitation. If the 1[st] respondent fails to file the appeal as directed above or does not deposit 50% of the assessed amount within period of fifteen days along with appeal, the Electricity Board shall be free to realise the amount due against the 1[st] respondent along with the applicable interest. **Sd/DINESH KUMAR SINGH JUDGE** Svn ``` WP(C) NO. 33608 OF 2016 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 33608/2016`** ## **`PETITIONER’S EXHIBITS`** - **`EXHIBIT P1 TRUE COPY OF THE SITE MAHASSOR DATED 0601-2015`** - **`EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 0601-2015 OF THE ASSISTANT EXECUTIVE ENGINEER, APTS, KANNUR TO THE SECOND PETITIONER.`** - **`EXHIBIT P3 TRUE COPY OF THE PROVISIONAL ASSESSMENT BILL DATED 12-01-2015 ISSUED BY THE SECOND PETITIONER TO THE FIRST RESPONDENT.`** - **`EXHIBIT P4 TRUE COPY OF THE FINAL BALL DATED 16-022015 ISSUED BY BY THE SECOND PETITIONER TO THE FIRST RESPONDENT.`** - **`EXHIBIT P5 TRUE COPY OF THE COMPLAINT IN OP NO 121/2014-15 FILED BY THE 1ST RESPONDENT BEFORE THE SECOND RESPONDENT.`** - **`EXHIBIT P6 TRUE COPY OF THE COUNTER FILED BY THE FIRST PETITIONER IN OP NO 121/2014-15`** - **`EXHIBIT P7 TRUE COPY OF THE ORDER DATED 30-09-2015 OF THE 2ND RESPONDENT IN OP NO 121/201415`** - **`EXHIBIT P8 TRUE COPY OF THE APPEAL PETITION NO P/166/2015 FILED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT.`** - **`EXHIBIT P9 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST PETITIONER IN THE APPEAL PETITION NO P/166/2015`** - **`EXHIBIT P10 TRUE COPY OF THE ORDER DATED 15-02-2016 PASSED BY THE 3RD RESPONDENT IN APPEAL PETITION NO P/166/2015.`**