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2018 DIGILAW 914 (KER)

M. A. Mahaboob v. Kerala State Electricity Board Ltd.

2018-11-13

DEVAN RAMACHANDRAN

body2018
JUDGMENT : A short question, but of some significance, arises in this writ petition in connection with the powers and jurisdiction vested with the Electricity Appellate Authority under the provisions of the Electricity Act 2013 and the attendant Rules and Regulations. 2. The Appellate Authority in this case, appears apparently to amerce the petitioner in an appeal filed by him, by re-fixing a larger duration during which unauthorised load was detected in his premises, even though in the Final Assessment and demand made by the competent Authority of the Kerala State Electricity Board (KSEB for short) this period was much shorter. The petitioner asserts that without the KSEB challenging the shorter duration fixed in the final demand, the Appellate Authority was in error in modifying it, and that too in an appeal filed by him, wherein he had impugned the demand on various other grounds. 3. The petitioner thus predicates that the Appellate Authority has exceeded its powers and has acted unfairly in foraying into areas over which its jurisdiction had not been invoked. 4. To assess the tenability of these contentions, a quick look into the factual factors becomes first necessary. 5. The petitioner, who claims to be the Managing Partner of a Firm, which is a consumer of a High Tension Consumer Electric supply, has filed this writ petition challenging Ext.P8 order of the Kerala State Electricity Appellate Authority. According to him, the said order suffers from the vice of having been issued without proper application of mind and without adverting to the applicable statutory provisions. 6. The compendious facts that are necessary for my consideration, is that a Firm by name M/s. Hycount Plastics and Chemicals, of which the petitioner is stated to be the Managing Partner, enjoys High Tension Electric Supply under HT 1A Industrial Tariff with a contract demand of 155kVA and a sanctioned load of 124kW. While so, on 25.02.2017, the Anti-power Theft Squad (ATPS for short) Kollam Unit of the Kerala State Electricity Board (KSEB for short), conducted a raid on the premises of the petitioner's firm, to detect that there was an additional unauthorized load of 290kW over and above the sanctioned load of 124kW. On such basis, a provisional assessment demand was made, which was, thereafter, reduced marginally in the final assessment order. 7. On such basis, a provisional assessment demand was made, which was, thereafter, reduced marginally in the final assessment order. 7. Even though the afore mentioned final assessment order was not challenged by the KSEB by filing a writ petition before this Court at that time, the petitioner opted to challenge it before the Kerala State Electricity Appellate Authority (hereinafter “Appellate Authority” for brevity) on various grounds; but primarily that his Unit is entitled to the benefit of Regulation 153(15) of the Electricity Supply Code 2014, which provides that “unauthorised additional load in the same premises under the same tariff shall not be reckoned as unauthorized use of electricity except in the case of consumer billed on the basis of connected load.” This appeal was allowed by the Appellate Authority, through Ext.P8 order, setting aside the final assessment order of the KSEB; but, thereafter, permitting it to issue a fresh bill from December 2014, even though as per the impugned demand, the petitioner had been billed only for a period of 12 months prior to 25.02.2017, being the date of inspection by the APTS. The petitioner asserts that Ext.P8 order is improper, illegal and issued in excess of the powers of the Appellate Authority. 8. I have heard Sri.Johnson Gomes, learned counsel appearing for the petitioner and Sri.Sudheer Ganesh Kumar, the learned Standing Counsel appearing for the KSEB. 9. As is clear from Ext.P8, which is the order impugned before me, the Appellate Authority had considered each of the contentions of the petitioner, afore narrated and has answered them specifically in the said order. On the question of the application of Regulation 153(15) of the Supply Code the Appellate Authority found that these issues have been considered and decided by this Court in Sulabha Marketing (P) Ltd. v. Kerala State Electricity Board [ 2017 (3) KHC 563 ] and therefore, that the petitioner is not entitled to the benefits as claimed for. As to the period during which the petitioner is liable to be mulcted with double the fixed charges for consumption of unauthorized load, the Appellate Authority found in Ext.P8 order that since the recorded maximum demand exceeded the contract demand continuously from December 2014, the period of unauthorized use ought to be construed as the period from December 2014 upto the date of inspection, as per the provisions of Section 126(5) of the Indian Electricity Act, 2013. The Appellate Authority then noticed that the final assessment bill, impugned before it, had taken the period of unauthorized use as being only 12 months prior to the date of inspection, solely because the Current Transformer (CT) of the energy metre installed in the petitioner's premises was replaced in the month of March 2016 and it thereupon concluded that this factum would have no impact to the case at hand because, it is only in the context where unauthorized use of electricity is detected in the metering system, that the replacement of Current Transformer would have any relevance. It, therefore, has held that since the maximum demand was seen to have exceeded the contract demand from December, 2014, the admitted fact of the replacement of the Current Transformer is of no consequence and resultantly, that the period of unauthorized use will have to be reckoned as being from December 2014 to the date of inspection. 10. On a consideration of the afore findings in Ext.P8 and in particular being guided by the judgment of the Division Bench in Sulabha Markteting(Supra), I must say upfront that I find the reasoning and findings in the said order of the Appellate Authority to be not in fault in any manner. This is because, as has been rightly found in Ext.P8, questions regarding Regulation 153(15) of the Supply Code had been noticed specifically by the Division Bench in Sulabha Markteting(supra) in paragraphs 26 and 27 of the judgment and in paragraph 29 thereof, the following was declared: “A different yard stick 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 there as on that, in such cases request made by the consumer for regularisatuion 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 upgradation of the existing distribution system or enhancement or voltage level of supply.” 11. It is therefore, obvious that, contrary to the submissions of the petitioner, the Division Bench had, in fact, examined Regulation 153(15) of the Supply Code and had found categorically that when the consumption of electricity is in excess of sanctioned or connected load in the same premises for the same purpose, the unauthorized connected load or enhancement of the contract demand will generally be acceded to by the Board as a matter of course once a consumer fulfills the statutory requirements. It consequently, becomes ineluctable that the Division Bench was fully aware of the provisions of Regulation 153(15) of the Supply Code and that it is after noticing it, that the afore extracted observations had been recorded in the judgment. I therefore, cannot find favour with the submissions of the learned counsel for the petitioner on this ground and I consequently repel it. 12. As regards the period of unauthorized consumption is concerned, I am of the view, as is also recorded in the impugned order, that the change of the Current Transformer is not relevant as far as the facts involved in this case are concerned. It is conceded, at least it not being specifically disputed, that the recorded maximum demand had exeeded the contract demand continuously from December 2014 and therefore, it obtains without doubt that the period of unauthorized load also would have to be construed as being from December 2014 and not being merely 12 months prior to date of the detection, as had been recorded in the impugned final demand of the KSEB. 13. Once I hold so, the only other question remaining is whether the Appellate Authority was right in apparently amercing the liability of the petitioner by extending the period of unauthorized load, even when the KSEB had not challenged the final demand under which the period of unauthorised load had been confined to 12 months prior to the detection. 14. The learned counsel for the petitioner submits that this is particularly unfair to his client because, had the petitioner not challenged the final demand, then the KSEB would have been content with the period fixed by them in the said demand. 14. The learned counsel for the petitioner submits that this is particularly unfair to his client because, had the petitioner not challenged the final demand, then the KSEB would have been content with the period fixed by them in the said demand. Even though this submission may appear to be lustrous at the first blush, it loses its sheen when one understands that the Appellate Authority under the Act is an Authority who does not merely adjudicate disputes between the parties but who is also vested with the obligation to ensure that the processes of the various applicable Statutes, Rules and Regulations are scrupulously adhered to. Merely because the Electricity Board had not challenged the final demand by filing a writ petition before this Court; because concededly it cannot approach the Appellate Authority statutorily, it does not mean that the Appellate Authority was completely estopped from considering this issue, especially when the said Authority had seen that the assessment made by the KSEB in the final demand was contrary to law. When the Appellate Authority observes an action of the concerned official of the KSEB to be contrary to the germane Statutes and Regulations, it will be inequitable for this Court to hold that the said Authority cannot enter into such areas unless it is specifically challenged by the KSEB. This is more so, because, the KSEB cannot challenge the final demand before the Appellate Authority in an appeal and it can only approach this Court by filing a writ petition, which it may have done, had the petitioner not approached the Appellate Authority. Therefore, merely because the KSEB had waited until the Appellate Authority has decided the matter at the instance of the petitioner, it cannot be said that the said Authority was restrained or girdled in any manner from exercising jurisdiction statutorily vested in it, which is primarily to ensure that the KSEB does not suffer on account of a wrong decision taken by its officers, even in good faith. 15. In the afore circumstances, I see no reason to interfere in any manner with Ext.P8 order and I therefore, dismiss this writ petition leaving liberty to the KSEB to make a reassessment as has been ordered in Ext.P8, adverting to the pre-deposit made by the petitioner while preferring the appeal before the Appellate Authority. 16. 15. In the afore circumstances, I see no reason to interfere in any manner with Ext.P8 order and I therefore, dismiss this writ petition leaving liberty to the KSEB to make a reassessment as has been ordered in Ext.P8, adverting to the pre-deposit made by the petitioner while preferring the appeal before the Appellate Authority. 16. The exercise as afore shall be completed by the competent Authority of the KSEB as expeditiously as possible but not later than two months from the date of receipt of a copy of this judgment. This writ petition is thus ordered.