Unauthorised use of Electricity; Jenin Mon V. Vs. State Electricity Board Ltd. [Kerala High Court, 23-08-2016]

Electricity Act, 2003 – Section 127 – Electricity Supply Code, 2014 (Kerala) – Regulation 153(15) – Estimation and regularisation of unauthorised additional load – the connected load reflected at the time of inspection was much higher than the authorised load and it will definitely take it to a different Tariff level as applicable to the ‘High Tension category’. This being the position, even though the excess energy consumed is in the same premises, the ‘second limb’ of Regulation No.153(15) with reference to the same Tariff is not satisfied. If the load is to be taken to the next Tariff level (HT category), it is quite obligatory for the consumer to get sufficient infrastructure installed including installation of Transformer at the cost of the consumer.

Inspection


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

W.A.Nos.1436, 1448 & 1450 OF 2016

Dated this the 23 rd August, 2016

AGAINST THE JUDGMENT IN WP(C) 23506/2016 of HIGH COURT OF KERALA DATED 14.07.2016

APPELLANT/WRIT PETITIONER

JENIN MON V.

BY ADVS.SRI.G.SHRIKUMAR (SR.) SMT.C.SEENA SMT.P.B.WAHIDA

RESPONDENTS/RESPONDENTS

1. KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, VIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 023

2. THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD LIMITED, ELECTRICAL SECTION, MUDICKAL, VAZHAKULAM, PERUMBAVOOR, ERNAKULAM-673101

3. THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD LIMITED, ELECTRICAL SUB DIVISION, PERUMAVOOR, ERNAKULAM-673101

4. THE EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD LIMITED, ELECTRICAL DIVISION, ERNAKULAM-682031

BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD

J U D G M E N T

P.R. Ramachandra Menon, J.

Correctness of the verdicts passed by the learned Single Judge (separate judgments) on different dates, in the concerned writ petitions, relegating the appellants/writ petitioners to pursue statutory remedy by way of appeal under

Section 127 of the Electricity Act, 2003

(‘Act’ for short) in respect of the assessment finalised under Section 126, is the subject matter of challenge in all these appeals.

2. The facts and circumstances are almost similar and so also is the position with regard to the consequences resulted. For convenience of reference, the parties and proceedings are referred to, as given in W.A.No.1436 of 2016, except where it is dealt with separately.

3. The petitioners availed electricity connection from the respondent Board under ‘LT IVA category’ (Industrial tariff) with a sanctioned load of less than 100 KW. On getting information as to the unauthoised use of electrical energy in the premises, a surprise inspection was conducted by the APTS (Anti Power Theft Squad) on 22.04.2016, when it was brought to light that the connected load in the premises was much higher than the sanctioned load and as such, there was high instances of ‘unauthorised use’ of electricity, which came within the purview of Section 126 of the Act. Ext.P1 Mahazar was prepared on the spot, referring to the incriminating circumstances and the instance of misuse/unauthorised use. It was accordingly, that Ext.P2 provisional assessment bill was issued to the consumer, followed by Ext.P3 demand notice. The appellant/consumer submitted Ext.P4 statement of objections. After considering the same, Ext.P5 final assessment order came to be passed by the second respondent, whereby a penalty of two times the charges for the excess quantity of the electricity consumed was mulcted upon the consumer/appellant.

4. In the course of further proceedings, the appellants sought to challenge the final assessment order by filing Ext.P7 appeal before the appellate authority/5 th respondent. But admittedly, such appeal was not preferred within the stipulated time of 30 days and there is a short delay (ranging from 7 to 10 days) in filing the same. Contending that the appeal was not being entertained by the appellate authority in view of the delay and since there was no provision in the statute to condone the delay, the appellants/writ petitioners approached this Court by filing the concerned writ petition pointing out that there was no other alternate remedy, in turn seeking for interference. The main contention was that, many relevant aspects as to the actual sanctioned load; that there was no theft of electricity but for a technical excess; absence of inspection by the ‘Assessing Officer’ himself and infringement of the mandate of

Regulation 153(15) of the Electricity Supply Code, 2014

were specifically adverted to.

5. When the matter came up for consideration before the learned Single Judge, after hearing the learned Counsel for the writ petitioners and also the learned Standing Counsel for the Board, it was observed that since the writ petitioners/consumers had already sought to prefer appeal, it was found fit and proper to direct the appellate authority to consider whether the delay of 7 to 10 days could be condoned, if the delay could be explained. The learned judge observed that the appellate authority will have jurisdiction to condone the delay as there was no prohibition under the Act to entertain the appeal, though it was filed beyond 30 days. It was also directed that further steps to disconnect the power supply shall be kept in abeyance for a period of ‘7 days’, so as to enable the writ petitioners to take appropriate steps for filing an application to condone the delay as well as to make predeposit as per the statute. The appellants are stated as aggrieved of such direction and they have filed the present appeals insisting the merit of the case to be considered by this Court.

6. Heard Mr. G.Sreekumar, the learned Sr. Counsel appearing for the appellants and Mr. Jaice Jacob, the learned Standing Counsel for the KSEB at length.

7. Before proceeding with discussion of the facts and figures, it will be worthwhile to note the nature of the prayers sought for in the writ petition and the nature of the relief granted by the Court, which are extracted below: (prayers in W.A.No.1436 OF 2016 and the directions given therein are extracted hereunder):

“i) to issue a writ of certiorari or other appropriate writ or order quashing Exhibit P2, P3 and P5 as the same is against the provisions of law;

ii) to direct the 5 th respondent, Kerala State Electricity Appellate Authority to consider Exhibit P5 appeal and pass orders and keep in abeyance all further proceedings including disconnection till the disposal of the appeal

iii) to pass such other orders or directions as this Honourable Court deem fit to the facts and circumstances of the case.”.

Directions:

“1. That the petitioner shall submit an application to condone delay along with Ext.P7 memorandum of appeal, which shall be considered by the appellate authority, the 5 th respondent herein and appropriate orders shall be passed thereon.

2. The power connection of the petitioner shall not be disconnected for a period of seven days to enable the petitioner to take appropriate steps for filing an application to condone delay as well as to make the predeposit as per the statute.”

8. The thrust of the submissions as raised in the grounds (in Ground D) is mainly with reference to the infringement of Regulation 153(15)of the Kerala Electricity Supply Code, 2014 which reads as follows: