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2017 DIGILAW 1163 (KER)

Kerala State Electricity Board, represented by The Secretary v. Sulabha Marketing (P) Ltd.

2017-08-21

ANIL K.NARENDRAN, P.R.RAMACHANDRA MENON

body2017
JUDGMENT : Anil K. Narendran, J. 1. These review petitions arise out of a common judgment of this Court dated 12.4.2017 in W.P.(C)No.31025 of 2008 and connected cases. Those cases were listed before the Division Bench based on an order of reference made by a learned Single Judge dated 17.8.2015 in W.P.(C)Nos.2159 of 2009, 6993 of 2013, 13322 of 2013 and 22644 of 2015 observing that an authoritative pronouncement on the quantification of penalty under Section 126 (6) of the Electricity Act, 2003 (for brevity, 'the Act') is essential since innumerable cases crop up everyday challenging the orders imposing penalty involving excess load. Based on the order of reference, the above said writ petitions and other tagged matters, i.e., W.P.(C)Nos.31025 of 2008, 12383 of 2016, 3206 of 2016, 3842 of 2016, W.A.No.1705 of 2012 and W.A.No.422 of 2014 were placed before the Division Bench for hearing, by the orders of the Hon'ble Chief Justice. 2. After considering the rival contentions, this Court disposed of those cases by the judgment dated 12.4.2017 [Sulabha Marketing (P) Ltd. v. Kerala State Electricity Board and others (2017 (3) KHC 563 : ILR 2017 (2) Ker. 609)]. Para.31 of the said judgment reads thus; “31. For the reasons stated hereinbefore, we hold as follows; (i) The presence of the assessing officer at the time of inspection and detection of unauthorised use of electricity in the premises of a consumer is not a mandatory requirement for initiating assessment proceedings under Section 126(1) of the Act. (ii) The expression 'unauthorised use of electricity' under Section 126 of the Act deals with cases of unauthorised use even in the absence of intention. Hence, the intention of the consumer is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the Act. (iii) Whenever a consumer commits the breach of the terms of the agreement, Regulations and the provisions of the Act by consuming electricity in excess of the sanctioned/connected load, such consumer would be in blame and under liability to pay at the rate equal to twice the tariff applicable for the relevant category of services in terms of Section 126 of the Act. (iv) The term 'tariff' in Section 126(6) of the Act includes both fixed charges and charges for the electricity supplied, which has to be assessed in the case of a consumer indulged in unauthorised use of electricity, at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5). (v) In case of unauthorised use of electricity in a higher tariff, such assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of services attracting such higher tariff for which electricity supplied was unauthorisedly used and not the relevant category of service to which the consumer belongs. (vi) However, in the case of a consumer, who is blamed with over drawal of electricity in excess of sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under Section 126 (6) of the Act can only be equal to twice the fixed charges payable and such consumer cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of services, unless regularisation of such additional connected load or enhancement of contract demand necessitates up-gradation of the existing distribution system or enhancement of voltage level of supply. (vii) In all other cases falling under Explanation (b) to Section 126 of the Act, the assessing officer is empowered to assess unauthorised use of electricity at the rate prescribed in Section 126(6) and for the period specified in Section 126(5), as amended by the Electricity (Amendment) Act, 2007 for both fixed charges and energy charges. Penalty charges for current charges shall be levied for proportionate energy charge and normal current charge collected shall be deducted. (viii) Though Regulation 51(1) of the Conditions of Supply, 2005 employs the term 'penalised', what is contemplated under the said Regulation is only assessment of unauthorised use of electricity in terms of Section 126 of the Act for the period specified in Section 126(5) and at the rate specified in Section 126(6) of the Act. (viii) Though Regulation 51(1) of the Conditions of Supply, 2005 employs the term 'penalised', what is contemplated under the said Regulation is only assessment of unauthorised use of electricity in terms of Section 126 of the Act for the period specified in Section 126(5) and at the rate specified in Section 126(6) of the Act. As such, Regulation 51(1) of the Conditions of Supply, 2005 is neither ultra vires the provisions of Section 126 of the Act nor unenforceable. (ix) What is contemplated under Board Order dated 7.2.2008 is only assessment of unauthorised use of electricity in terms of Section 126 of the Act, as amended by the Electricity (Amendment) Act, 2007, for the period specified in Section 126(5) and at the rate specified in Section 126(5) of the Act. As such, the said Board Order is neither ultra vires the provisions of Section 126 of the Act nor unenforceable.” 3. In the said judgment, this Court held, among other things, that the expression 'unauthorised use of electricity' under Section 126 of the Act deals with cases of unauthorised use even in the absence of intention. Whenever a consumer commits breach of the terms of the agreement, Regulations and the provisions of the Act by consuming electricity in excess of the sanctioned/connected load, such consumer would be in blame and under liability to pay at the rate equal to twice the tariff applicable for the relevant category of services in terms of Section 126 of the Act. However, a different yardstick has to be applied in cases of consumption of electricity in excess of the sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter. It was for the reason that, in such cases request made by the consumer for regularisation of unauthorised connected load or enhancement of contract demand will be acceded to by the Board, as a matter of course, once the consumer fulfills the statutory requirements, unless such regularisation of connected load or enhancement of contract demand necessitates up-gradation of the existing distribution system or enhancement of voltage level of supply. 4. 4. Now, the Kerala State Electricity Board is before this Court in these review petitions, invoking the review jurisdiction of this Court under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, mainly aggrieved by the conclusion made in clause (vi) of Para.31 of the said judgment. 5. The common grounds raised in these review petitions read thus; “(A). The observations and findings in Para.26 requires review and correlation. Section 126 is applicable where there is unauthorised usage of electricity. It has no correction to the actual loss suffered by the Electricity Board. Moreover drawal of electricity without ascertaining the safety of the apparatus and wiring may cause serious problems. It will derail the entire system. These very important aspects were not noticed while this Honourable Court entered into the finding in Para.26 of the judgment. (B). The observation and finding in Para.27 requires review and correction. Regulation 153(15) of the Supply Code, 2014 is contrary to the mandate of Section 126. The Kerala State Electricity Regulatory Commission has no power to make regulation in matters connected with Section 126. Section 126 coupled with Section 127 is a self-contained code, the rigor of which cannot be diluted by any other authority. The said position is no more res-integra in view of the decision of the Honourable Supreme Court in Sri.Seetharam Rice Mills' case. (C). The reasoning and finding in Para.29 requires review and correction. Under Section 126 all kinds of unauthorised usage is a subject matter for assessment. But while fixing the quantum the tariff applicable in cases where the consumption is for a higher tariff, the said tariff rate shall be applicable. It does not mean that in case there is no tariff change, there is no unauthorised usage. This aspect also was not considered in the proper perspective. The conclusion in Para.31(vi) also therefore requires review and correction.” 6. In Para.10 of the review petition it has been stated that, during the year 2014-15 unauthorised use of electricity was detected in 1662 units, in all the three regions, and the total amount assessed comes to Rs.14,40,82,176/-. The corresponding figures during the years 2015-16 and 2016-17 are 1262 and 1875 units respectively and the total amount assessed comes to Rs.10,63,76,776/- and Rs.34,64,80,421/- respectively. Therefore, the total amount assessed for all the three years comes to Rs.59,69,39,373/-. The corresponding figures during the years 2015-16 and 2016-17 are 1262 and 1875 units respectively and the total amount assessed comes to Rs.10,63,76,776/- and Rs.34,64,80,421/- respectively. Therefore, the total amount assessed for all the three years comes to Rs.59,69,39,373/-. In addition to the above, an amount of Rs.41,14,858/- and Rs.1,42,09,148/- were assessed during the years 2015-16 and 2016-17 respectively, by the Regional Audit Office (RAO) Inspection. 7. We heard the learned Senior Counsel for the KSEB, appearing for the review petitioners, and also the learned counsel for the respondents in these review petitions. 8. In the judgment sought to be reviewed, this Court held that a different yardstick has to be applied in cases of consumption of electricity in excess of the sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter. The reasoning on the said issue, as contained in Paras.26 to 30 of the judgment reads thus; “26. As far as domestic consumers are concerned, the fixed charge for single phase connection is Rs.20/- per month and it is Rs.60/- per month for three phase connection, irrespective of the connected load. Therefore, a domestic consumer is paying fixed charge at the specified rate irrespective of the connected load and the energy charge for the actual consumption at the rates specified in the tariff order. Even if there is excess connected load in the premises of a domestic consumer, the electricity charges realisable from the consumer do not change and as such, additional connected load would not result in any financial loss to the licensee as per the terms and conditions of the tariff orders in force. That may be the reason which persuaded the Electricity Regulatory Commission not to penalise domestic consumers for additional loads in their premises, by incorporating Regulation 153(15) of the Supply Code, 2014, which provides that, unauthorised additional load in the same premises and under same tariff shall not be reckoned as unauthorised use of electricity. Such domestic consumers will have the option either to regularise such additional load or to get such additional load removed at the discretion of the licensee. Such domestic consumers will have the option either to regularise such additional load or to get such additional load removed at the discretion of the licensee. If the consumer fails to remove the additional load as directed by the licensee, the supply to the premises can be disconnected by the licensee. 27. Regulation 153(15) of the Supply Code, 2014 has undergone amendment by the Kerala Electricity Supply (Amendment) Code 2016, which came into force on 4.2.2016, by adding the words 'except in the case of consumers billed on the basis of connected load' at the end of that sub-regulation. Such an amendment was made when it was found that, the application of Regulation 153(15) to the consumers who are charged on connected load basis, would result in the licensees incurring financial loss in as much as, for the additional connected load the licensees are entitled for charges demanded on connected load basis. 28. In cases falling under Explanation (b) to Section 126 of the Act, the assessing officer is empowered to assess unauthorised use of electricity at the rate prescribed in Section 126(6) and for the period specified in Section 126(5), as amended by the Electricity (Amendment) Act, 2007 for both fixed charges and energy charges. Penalty charges for current charges shall be levied for proportionate energy charge and normal current charge collected shall be deducted. In case of unauthorised use of electricity in a higher tariff, such assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of services attracting such higher tariff for which electricity supply was unauthorisedly used and not the relevant category of service to which the consumer belongs. 29. A different yardstick has to be applied in cases of consumption of electricity in excess of the sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter. This is for the reason that, in such cases request made by the consumer for regularization of unauthorised connected load or enhancement of contract demand will be acceded to by the Board, as a matter of course, once the consumer fulfills the statutory requirements, unless such regularisation of connected load or enhancement of contract demand necessitates up-gradation of the existing distribution system or enhancement of voltage level of supply. 30. As held by the Apex Court in Seetharam Mill's case (supra), in the case of unauthorised use of electricity, the blame on the consumer is in relation to excess load while the liability is to pay on a different tariff for the period prescribed in law and in terms of the order of assessment passed by the assessing officer under the provisions of Section 126 of the Act. In that view of the matter, in the case of a consumer, who is blamed with overdrawal of electricity in excess of sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under Section 126 (6) of the Act can only be equal to twice the fixed charges payable and such consumer cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of services, unless regularisation of such additional connected load or enhancement of contract demand necessitate up-gradation of the existing distribution system or enhancement of voltage level of supply.” 9. Accordingly, it was held in clause (vi) of Para.31 of the judgment that, in the case of a consumer, who is blamed with overdrawal of electricity in excess of sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under Section 126(6) of the Act can only be equal to twice the fixed charges payable and such consumer cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of services, unless regularisation of such additional connected load or enhancement of contract demand necessitates up-gradation of the existing distribution system or enhancement of voltage level of supply. 10. What follows from the above is that, in order to come within the purview of clause (vi) of Para.31 of the judgment, a consumer who is blamed with overdrawal of electricity in excess of sanctioned/connected load must satisfy the following conditions; (i) Such overdrawal of electricity should be in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services; (ii) Such consumption must have already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter; and (iii) Regularisation of such additional connected load or enhancement of contract demand should not necessitate up-gradation of the existing distribution system or enhancement of voltage level of supply. 11. It is pertinent to note that, clause (19) of Section 2 of the Electricity Act, 2003 defines 'distribution system' to mean the system of wires and associated facilities between the delivery points on the transmission lines or the generating station connection and the point of connection to the installation of the consumers. Clause (64) of Regulation 2 of the Kerala Electricity Supply Code, 2014 defines 'point of supply' to mean the point at the incoming terminal of the cut-out installed by the consumer in the case of low tension consumer and the point at the incoming terminal of the control switch gear installed by the consumer in the case of high tension and extra high tension consumers. Regulation 4 of the Kerala Electricity Supply Code, 2005 which was in vogue till 1.4.2014, was also similarly worded. Therefore, in order to come within the purview of clause (vi) of Para.31 of the judgment, the regularization of such additional connected load or enhancement of contract demand should not necessitate up-gradation of existing distribution system, i.e., the system of wires and associated facilities between the delivery points on the transmission lines or the generating station connection and the point of connection to the installation of the consumers, i.e., the point of the incoming terminal of the cutout installed by a consumer in the case of low tension consumer and the point at the incoming terminal of the control switch gear installed in the case of high tension and extra high tension consumers. 12. In Thungabhadra Industries Ltd v. Government of Andhra Pradesh ( AIR 1964 SC 1372 ) the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 13. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi ( 1980 (2) SCC 167 ) the Apex Court held that, if the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 14. In Parsion Devi v. Sumitri Devi ( 1997 (8) SCC 715 ) the Apex Court, in the context of the power of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order XLVII Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 15. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 15. Later, in Lily Thomas v. Union of India ( 2006 (3) SCC 224 ) the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 16. In Anantha Reddy N. v. Anshu Kathuria (2013 (15) SCC 534) the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 17. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions. 18. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in these review petitions fall within the ambit and scope of Order XLVII Rule 1 of the Code. In the result, these review petitions fail and they are accordingly dismissed. No order as