Thomas Mathew v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **MONDAY, THE 13TH DAY OF JANUARY 2014/23RD POUSHA, 1935** ## **WP(C).No. 27567 of 2009 (M)** **----------------------------** - **PETITIONER(S): --------------------------** **THOMAS MATHEW, MANAGING DIRECTOR, K.E.AGRO PRODUCTS, ARPOOKARA. (CONSUMER NO.10518 LT IV AYMANAM ELECTRICAL SECTION).** **BY ADV. SRI.LIJI.J.VADAKEDOM** ## **RESPONDENT(S):** - **----------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PALLOM, KOTTAYAM.** **3. ASST.EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, GANDHINAGAR, KOTTAYAM.** ## **4. ASST.ENGINEER,** - **ELECTRICAL SECTION, AYMANAM, KOTTAYAM.** ## **5. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KOTTAYAM.** **R1 TO R5 BY ADV. SMT.P.K.RADHIKA,SC,KSEB SRI.P.P.THAJUDEEN, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.27567/2009 (M)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ORDER NO.DB 2/30/06/07/P.A.5/234 DTD.16/06/2006 ISSUED BY 2ND RESPONDENT CHANGING POWER ALLOCATION TO THE PETITIONER'S INDUSTRY.** - **P2: COPY OF THE ORDER NO.DB 2/PA/06/07/447 DTD. 16/08/06 ISSUED BY THE 2ND RESPONDENT RETURNING AGREEMENT SUBMITTED FOR ENHANCEMENT OF POWER ALLOCATION.** - **P3: COPY OF THE ORDER DTD. 4/12/2007 IS O.P.212/07 BEFORE CGRF (SOUTH).** - **P4: COPY OF THE ORDER DTD. 28/05/09 ISSUED BY THE KSE BOARD SANCTIONING ADDITIONAL POWER SUPPLY.** - **P5: COPY OF THE NOTICE ISSUED BY THE R4 - ASSISTANT ENGINEER TOGETHER WITH THE ADDITIONAL BILL.** - **P6: COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT.** - **P7: COPY OF THE APPEAL SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.** - **P8: COPY OF THE ORDER OF THE 5TH RESPONDENT DISMISSING THE APPEAL.** - **P9: COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** **R1(a): COPY OF LETTER DTD. 26/10/2009.** **R1(b): COPY OF THE SITE MAHASAR.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 27567 of 2009 --------------------------------Dated this the 13th day of January, 2014 ## JUDGMENT Assessment of penalty imposed against the petitioner under section 126 of the Electricity Act 2003 by virtue of Ext.P6 order issued by the 4[th] respondent, which is confirmed in Ext.P8 appellate order issued by the 5[th] respondent, is under challenge in this writ petition. The penalty was imposed based on an inspection conducted at the premises of the petitioner by the Anti Power Theft Squad (APTS) on 8.5.2008, and based on an allegation that an unauthorised additional load 43 KW was detected during the time of inspection. 2. The electric connection in question was provided with an authorised connected load of 65 KW. The inspecting team found that capacity of the total installations in the premises is 108 KW. Hence it is found that there is unauthorised additional load to the extent of 43 KW. Penalty was assessed on the above extent of unauthorised additional load for a period of one year at WP(C). 27567 /2009 2 two times of the fixed charges and energy charges on the proportionate consumption of unauthorised additional load for the said period. 3. Contention of the petitioner was that he had applied for additional power allocation to the extent of 65 HP, which was allowed by the 2[nd] respondent through Ext.P1 order issued as early as on 16.6.2006. On the basis of Ext.P1 the petitioner had submitted a completion report and other connected documents including the agreement for service connection. But those documents were returned by the 2[nd] respondent through Ext.P2 letter, stating the reason that, being a consumer of connected load above 100 KVA the petitioner has to change the connection to HT category. Petitioner had challenged such decision taken by the 2[nd] respondent before the Consumer Grievance Redressal Forum(CGRF). Ext.P3 is the order passed by the CGRF. It was found that, with respect to existing consumers the additional load upto a total connected load of 150 KVA can be sanctioned under LT category itself. Hence it is found that Ext.P1 power allocation issued by the 2[nd] respondent is in order and the Board authorities WP(C). 27567 /2009 3 are bound to comply with the same. Finding that there is delay occurred on the part of the Board authorities in granting power allocation it has to be deemed that the petitioner was denied of additional power before 7.7.2006. Hence it is found that he is entitled to get the additional power load sanctioned in the light of the order of the Board dt. 7.7.2006. The petitioner was given liberty to approach the Board pointing out the findings of the Forum seeking reconsideration of the matter. Ext.P3 order was passed by the CGRF as early as on 4.12.2007. 4. Eventhough the petitioner submitted a request for providing additional power, the respondents had delayed the matter further on an indefinite basis. Therefore the petitioner had approached this court in WP(C).No.22399/2008. This court directed the 1[st] respondent Board to take a decision within a time limit. Accordingly Ext.P4 order was issued intimating sanction to give additional load retaining the petitioner in LT category. Ext.P4 order was issued on 28.5.2009. But in the meanwhile the inspection was conducted on 8.5.2008 and the impugned penalty was assessed. WP(C). 27567 /2009 4 5. Contention of the petitioner is that, additional power was alloted as per Ext.P1 order issued by the 2[nd] respondent as early as on 16.6.2006. The CGRF has categorically found that the power allocation granted under Ext.P1 was in order and that the petitioner ought to have been provided with enhancement of power on the basis of Ext.P1. Insistence for conversion of the category of the connection as HT was already found as not sustainable. Hence it is contended that the competent authority had already authorised the usage of additional load. Therefore the additional connected load found at the time of inspection cannot be treated as unauthorised additional load or the petitioner cannot be attributed with any unauthorised usage of electricity. Therefore the imposition of penalty alleging unauthorised usage of electricity, is impugned . 6. In Ext.P8 appellate order it is mentioned that, during the inspection the unauthorised load of 43 KW was seen connected to the system and hence the argument of the petitioner that the additional load was not connected to the system is not true and correct. The appellate authority found that the recorded WP(C). 27567 /2009 5 'maximum demand' noticed in the power meter at the time of inspection was 132.8 KW. Therefore the contention cannot be accepted. In the counter affidavit of the respondents it is contended that the unauthorised additional load detected during the time of inspection had nothing to do with the power allocation and delay occurred in sanctioning the power allocation was only due to the fact that the power allocation request could not have considered in view of the clarification issued by the Board. Inter alia, it is contended that the argument that the additional load was operated by using Generator cannot be accepted in view of the facts revealed in the inspection report. 7. Factual matrix remains undisputed that at the time of inspection there was a total connected load of 108 KW . It is also not in dispute that the authorised connected load was 65 KW. Contention of the petitioner is that the additional load of 43KW detected cannot be treated as unauthorised connected load because the competent authority had issued power allocation as per Ext.P1 and he had complied with all the requisite formalities for permitting usage of the additional power. WP(C). 27567 /2009 6 Learned counsel for the petitioner had drawn attention of this court to provisions contained in section 126(6)(b) of the Electricity Act 2003. Illustrations of “unauthorised use of electricity” enumerated therein specifies that, usage of electricity by a means not authorised by the concerned person or authority or licensee, will be construed as unauthorised use of electricity. Contention of the petitioner is that, in the case at hand, since there was additional power allocation granted prior to the date of inspection and since the petitioner had complied with all the requisite formalities for permitting usage of such additional load, the usage of electricity through such additional installation cannot be construed as unauthorised usage. Per contra, it is contended by the Standing Counsel that mere power allocation is not sufficient for permitting usage of the additional connected load. Referring to various Regulations in the Supply Code as well as in the Terms and Conditions of Supply, it is contended that the usage of additional power load can be deemed to be sanctioned only when the competent authority had approved the completion certificate and when the consumer had executed the power WP(C). 27567 /2009 7 connection agreement. But learned counsel for the petitioner contended that even assuming that the Board has not completed the formalities for usage of the additional power, it cannot be presumed as 'unauthorised usage' coming within the purview of section 126, even though it may attract other consequences like disconnection of supply. 8. It is pertinent to note that the hon'ble Supreme Court in the decision in **Executive Engineer, Southern Electricity Supply Company of Orissa Ltd. and another vs. Sri.Seetaram Rice Mill (2012) 2 SCC 108)** held that clauses (i) to (v) of sub section 6(b) of section 126 are only illustrative of the circumstances of unauthorised usage and it cannot be construed as exhaustive. The unauthorised use of electricity would mean, what is stated in those explanation as well as other unauthorised user which is squarely in violation of the statutory or contractual provisions. Therefore it is held that unauthorised use of electricity cannot be restricted to the illustrative explanations contained in section 126. Unauthorised use of electricity itself is an expression which would on its plain reading WP(C). 27567 /2009 8 take within its scope all the misuse of electricity or mal practices adopted while using electricity. Therefore it is difficult to restrict unauthorised use and to limit its application with regard to the categories mentioned in explanation (2) to section 126(6). Further it is to be noted that Regulation 51(1) of the KSEB Terms and Conditions of Supply 2005 stipulates that the unauthorised additional load in case of LT/HT/EHT consumers is liable to be penalised as per Regulation 50 (5) and (6) of the Terms and Conditions of Supply. Regulation 50(5) and (6) deals with imposition of penalty as contemplated under section 126 of the Electricity Act 2003. Further, the relevant Regulations in the Terms and Conditions of Supply insist upon the consumer that before connecting any electrical equipment to the system the same shall be subjected to inspection and approval from the Board authorities . Hence it is evident that the power allocation, even if assumed as valid from the date of Ext. P1 onwards, it cannot be contended that the petitioner was authorised to use electricity for the additional installation connected to the system, without getting final approval from the authorities of the Board. WP(C). 27567 /2009 9 Hence the contention that unauthorised usage of electricity as contemplated under section 126 was not in existence, cannot be accepted. Therefore the writ petition deserves no merit on the above ground. 9. However this court takes note of the fact that, insistence for the change of category to HT was held as not sustainable, through Ext.P3 order passed by the CGRF, as early as on 4.12.2007. The CGRF had permitted the petitioner to approach the concerned authority on the basis of findings contained in Ext.P3. Ext.P2 was set aside on that basis. Evidently the petitioner had submitted a representation in this regard before the 2[nd] respondent, as early as on 2.4.2008. But inspite of the specific direction issued by CGRF, the representation was not considered. The petitioner had to approach this court again seeking direction. Ultimately Ext.P4 decision to treat the power allocation as valid and to permit the petitioner to retain in LT category, was sanctioned only on 28.5.2009. Therefore it is evident that, at the time of inspection on 8.5.2008 the above aspects were within the knowledge of the WP(C). 27567 /2009 10 authorities of the Board. Evidently the petitioner was restrained from usage of the additional power allocation on the basis of delay caused in finalisation of the proceedings pursuant to Ext.P3 order. Further it is also evident that the completion certificate as well as the power connection agreement were executed and submitted by the petitioner and it was pending disposal before the 2[nd] respondent at the time when the inspection was conducted. Final approval of the usage of the additional power load was delayed only due to the laches on the part of the authorities of the Board. Hence this court is of the opinion that, on the principles of equity, the case of the petitioner needs sympathetic consideration. Hence while repelling contentions for exonerating the petitioner from the liability of penalty, this court is of the considered opinion that the a lenient attitude in the matter of quantification of penalty will be fully justified. Interest of justice would be served by limiting the period for which the penalty is to be imposed as 6 months, instead of the one year period imposed through Ext.P6. 10. Therefore while disposing this writ petition the 4[th] WP(C). 27567 /2009 11 respondent is directed to revise the demand by limiting the calculations for a period of 6 months preceding a date of inspection, instead of the one year period computed. Ext.P9 demand will stand modified to the above extent. 11. The 4th respondent shall issue revised demand on the above said basis after appropriating the amounts of penalty already remitted. Needful steps in this regard shall be taken within a period of two weeks from the date of receipt of a copy of this judgment. Time for payment of balance amount if any due shall be provided to the petitioner, to the extent of two weeks from the date of receipt of the revised bill. On the other hand if there is any excess payment the same shall be refunded/adjusted in future bills. Needless to observe that the petitioner shall not be made liable for payment of any interest (surcharge) till the date stipulated for payment in the revised bill to be issued. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 27567 /2009 12 WP(C). 27567 /2009 13