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2018 DIGILAW 1052 (KER)

Varghese v. State of Kerala

2018-12-16

ASHOK MENON, K.VINOD CHANDRAN

body2018
JUDGMENT : ASHOK MENON, J. W.A.No. 2276 of 2016 1. Aggrieved by the impugned judgment dated 29.08.2016 of the learned Single Judge in O.P.No.22726/2002, the petitioner is in appeal before us in W.A.No.2276/2016. 2. The appellant is a consumer of the 2nd respondent-Kerala State Electricity Board (K.S.E.B.) and has electric connection with a sanctioned load of 15 KW. The Anti-power Theft Squad (for brevity ‘APTS’) inspected the premises of the appellant on 05.08.2000 and detected the petitioner using 30 KW of power without permission of the Board. Under Clause 42(d) of the Conditions of Supply of Electrical Energy, 1990 (for brevity ‘Supply Conditions’), Ext.P1 bill dated 11.08.2000 was raised for Rs.68,507/-. The bill for actual consumption of energy during the month of July 2000 received by the petitioner is Ext.P2, for fixed charges of Rs.675/-. 3. The petitioner filed statutory appeal and also filed O.P.No.25203/2000 before this Court challenging the demand. Vide Ext.P3 judgment, dated 30.08.2000 this Court directed the petitioner to deposit 1/3rd of the amount demanded as per Ext.P1 and the statutory appeal was directed to be disposed of on merits and the Board was directed to receive payment offered by the petitioner as per the normal bill, pertaining to usage of electricity. 4. In the meanwhile, on 11.10.2000, the petitioner requested regularisation of the excess load and claims to have removed six split Air Conditioners of 1.5 ton each, during the second week of August, 2000. Stating that the consumer had not dismantled the ACs., the Board refused to regularise and continued imposing of penal rates. Challenging this, the consumer once again approached this Court with O.P.No.27249/2000 questioning the bill he received for the month of August, 2000, which was disposed of by judgment dated 25.09.2000 directing disposal of the statutory appeal, and to accept the admitted amount of bill. The petitioner filed O.P.No.30032/2000 challenging the bill for the month of September, 2000 and for the subsequent bills received, O.P.Nos.33285/2000 and 103/2001 were filed. Recovery of entire amount was stayed by this Court. In the meanwhile, the petitioner had filed an application for regularisation in view of his proposal to install a 40 KW DG Set and requested to accord sanction under Section 44 of the Electricity (Supply) Act, 1948 (for brevity “Supply Act”) vide Exts.P4 and P5. Recovery of entire amount was stayed by this Court. In the meanwhile, the petitioner had filed an application for regularisation in view of his proposal to install a 40 KW DG Set and requested to accord sanction under Section 44 of the Electricity (Supply) Act, 1948 (for brevity “Supply Act”) vide Exts.P4 and P5. On 07.05.2001, temporary sanction was granted to the appellant by the Deputy Chief Electrical Inspector to install the DG Set. Thereafter, the statutory appeal filed by the appellant was rejected vide Ext.P6 order. 5. The petitioner filed I.A.No.12017/2015 for amendment of the O.P., challenging Clause 42(d) of the Supply Conditions as being beyond the scope of Indian Electricity Act, 1910 (for brevity “Act of 1910”) and also to declare that Clause 42(d) is ultra vires and beyond the powers delegated to the 2nd respondent under Section 79(j) of the Supply Act. 6. The petitioner states that the misuse of electricity load suggested by Clause 42(d) at three times the energy bill is highly excessive and that Sections 39 to 56 of the Act of 1910 provides for offences and punishment for misuse. In view of that, the Clause cannot be inconsistent with the provisions contained in Act of 1910 as well as the Supply Act. 7. The learned Single Judge rejected the challenge raised by the petitioner and did not find any infirmity in Clause 42(d) of the Supply Conditions and thus dismissed the Original Petition. 8. Aggrieved by the dismissal of the Original Petition, the appellant is before us stating that Ext.P6 order passed by the 4th respondent is illegal, improper and liable to be quashed. It is further urged that even if the consumer exceeds the sanctioned load without prior permission of the Board, under Clause 42(d) the consumption can be treated only as misuse of energy under the Act of 1910. The power given to the Board under Clause 42(d) is beyond the scope of the provisions contained in the Act of 1910, and is therefore, arbitrary, unreasonable and ultra vires. It is pointed out that the Clause was framed by the Board in exercise of the powers conferred on it vide Section 79(j) of the Supply Act, and therefore, the power is confined to prescribe fee/charges of various items and also to issue forms and does not authorise the Board to define offences and impose penalty of any description. It is pointed out that the Clause was framed by the Board in exercise of the powers conferred on it vide Section 79(j) of the Supply Act, and therefore, the power is confined to prescribe fee/charges of various items and also to issue forms and does not authorise the Board to define offences and impose penalty of any description. Imposing of penalty in excess of the powers delegated to it under Section 79(j) of the Supply Act is therefore, improper. It is submitted that the punishment can be imposed only to the extent provided by the Act of 1910 and no new offence can be prescribed by way of penalty. The appellate authority did not appreciate the evidence produced by the consumer in Ext.P6 order. The Board directed the petitioner to dismantle all those ACs. that the petitioner had installed and a formal application be made for regularisation of excess usage. The finding in Ext.P6 that the Assistant Engineer had found the ACs. in place with only the lead wire to the supply disconnected, was not found to be sufficient. The appellant had also informed the Board about the purchase of 40 KW DG Set, with which he intended to energise the ACs. after getting sanction from the Electrical Inspectorate. The ACs. could not have been dismantled for the reason that it would hamper the beauty of the shop wall and therefore the insistence of the Board to remove the ACs. from the wall was unreasonable, particularly in view of the fact that the Board could have conducted surprise inspection to detect the mischief, if any, continued by the consumer by using the ACs. It is pointed out that the learned Single Judge has failed to appreciate the legal contentions raised in the Original Petition and it is therefore prayed that the Petition be allowed in the appeal, setting aside the findings of the learned Single Judge. 9. Heard the learned Senior Counsel appearing for the appellant and the Counsel appearing for the respondents. 10. Section 79(j) of the Supply Act, which imposes the Board to make Clauses, reads thus: “79. 9. Heard the learned Senior Counsel appearing for the appellant and the Counsel appearing for the respondents. 10. Section 79(j) of the Supply Act, which imposes the Board to make Clauses, reads thus: “79. Power to make Clauses.-- The Board may, by notification in the Official Gazette, make Clauses not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely:- (a) the administration of the funds and other property of the Board, and the maintenance of its accounts; xx xx (j) principles governing the supply of electricity by the Board to persons other than licensees under Section 49; (jj) xx xx (k) any other matter arising out of the Board’s functions under this Act for which it is necessary or expedient to make Clauses:” By virtue of the aforesaid power granted to the Board, Clause 42(d) was brought into effect, which reads thus: “42.Misuse of energy:--xx xx (d) If the consumer exceeds the contracted load without prior permission of the Board or energy supplied for a specific purpose under a particular tariff is used without the Board’s knowledge and approval for a different purpose not contemplated in the contract for supply and for which higher tariff is applicable coming under misuse of energy within the meaning of the IE Act 1910. Misuse of energy will be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse unless there are convincing reasons for adopting different periods and supply disconnected without notice. The imposition of this higher rate will not relieve the consumer from any penalties imposed by law.” 11. According to the Board, Clause 42(d) empowers the Board to bill the misuse of energy at three times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse. The learned Senior Counsel submits that a reading of Clause 42(d) would indicate that power supplied under a particular tariff if used for different purpose not contemplated in the contract for supply and for which higher tariff is applicable coming under misuse of energy within the meaning of the Act of 1910, specifically sub-section (2) of Section 23, alone would attract the penal provisions under Clause 42(d). Hence, there must be a misuse to the extent that the consumer is liable to pay at a higher tariff and it must be necessarily a misuse as contemplated under the provisions of the Act of 1910. We cannot accept that view since even if there is a connected load in excess of that permitted in Section 42(d) has application. But, we agree that the same would apply only if it is categorised as a misuse of energy under the Act of 1910. 12. Section 23(2) of the Act of 1910 speaks of using electricity in a method of charging at higher rate when the permission is for using it under a lesser rate; for example using a domestic connection for commercial purposes. This is a misuse as provided in the Act of 1910 and that is what is provided under the second limb of Clause 42(d). Under the Chapter heading “Criminal Offences and Procedure” of the Act of 1910, Section 39 speaks of theft of energy and provides for penal consequences which is also applicable for abetment of such offence under Section 39A. Sections 40 to 49 prescribes various penalties for misuse of energy. None of these speak of use in excess of the connected load. Hence, a combined reading of the provisions of the Act of 1910 with Clause 42(d) of the Supply Conditions, it would be adequately clear that to invoke the provisions of Clause 42(d) there must necessarily be use in excess of contracted load or a misuse by the consumer for which a higher tariff is applicable and it must necessarily come under the definition of misuse of energy within the meaning of the Act of 1910. If it is not so, the penalty prescribed under Clause 42(d) cannot be imposed. The Board does not have a case that the tariff of the consumer has been altered because of the unauthorised additional load and hence we are of the opinion that the action taken by the Board imposing the penalty as prescribed under Clause 42(d) is unsustainable. There is also no allegation levelled that sub-section (2) of Section 23 of Act of 2010, has been violated. We are not inclined to go into the sustainability of Clause 42(d). The learned Single Judge did not appreciate the provisions in this perspective as pointed out by us. There is also no allegation levelled that sub-section (2) of Section 23 of Act of 2010, has been violated. We are not inclined to go into the sustainability of Clause 42(d). The learned Single Judge did not appreciate the provisions in this perspective as pointed out by us. Hence, the appeal is partly allowed to the extent Ext.P1 demand as well as Ext.P6 order are set aside. W.A.No.1342 of 2008 13. This appeal is filed by the KSEB, challenging the order dated 07.07.2006 of the learned Single Judge in O.P.No.20829/2002. The petitioner therein is the Partner of Hotel Apsara, Chalakkudy and the Writ Petition was filed with prayers to quash Ext.P4 order and Ext.P5 invoice. The learned Single Judge disposed of the petition on the ground that the penalty has to be limited to the fixed charge portion and that there shall not be any penalty by way of proportionate energy charges and hence the impugned demands cannot be sustained, making it clear that the liability of the petitioner shall only be for the penalty for fixed charge portion and a revised demand was directed to be issued to the petitioner and amounts already remitted by the petitioner was directed to be adjusted. It is this finding of the learned Single Judge, which stands challenged in this appeal. The Board is aggrieved for the reason that the learned Single Judge had overlooked the fact that the penal charges were correctly calculated based on the prevailing regulations and that the order of the Board dated 18.09.2002 amending the regulations with retrospective effect, and therefore, inapplicable in the case of the respondent. It is also submitted, in W.A.No.1231/2003 the Division Bench of this Court has held that the amended Regulation 42(d) of the Regulations relating to the Conditions of Supply of Electrical Energy would operate only prospectively and the petitioners therein would not get the benefit of the amended provisions, and therefore, it is prayed that the impugned order may be set aside. 14. In view of our finding in the W.A.No.2276/2016 holding that the provisions of Clause 42(d) is applicable only subject to the penal provisions of the Act of 1910, this Appeal of the Board cannot be sustained and is resultantly dismissed. No order as to costs.