Kerala High Court
The Kerala State Electricity Board Ltd vs The Kerala State Electricity Appellate ... on 9 June, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
WA NO. 149 OF 2023 :1: 2025:KER:40422
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 9TH DAY OF JUNE 2025 / 19TH JYAISHTA, 1947
WA NO. 149 OF 2023
AGAINST THE JUDGMENT DATED 01.12.2022 IN WP(C) NO.38915 OF
2022 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
THE KERALA STATE ELECTRICITY BOARD LTD,
VYDUDHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695004
REPRESENTED BY ITS SECRETARY.
BY ADV SRI.C.JOSEPH ANTONY
RESPONDENTS/RESPONDENTS:
1 THE KERALA STATE ELECTRICITY APPELLATE AUTHORITY,
CCTI/52, NEAR 110 KV SUB STATION,KOCHI, PIN - 682019
2 DR. SR. JASEENA JOSEPH,
PRINCIPAL PROVIDENCE WOMEN'S COLLEGE,CARMEL HILL,
MALAPPARAMBA,KOZHIKODE, PIN - 673009
BY ADV SHRI.GEORGE SEBASTIAN
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
09.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 149 OF 2023 :2: 2025:KER:40422
JUDGMENT
Dr. A.K.Jayasankaran Nambiar, J.
This Writ Appeal by the Kerala State Electricity Board Limited impugns the judgment dated 1st December 2022 of a learned Single Judge in WP(C) No.38915 of 2022. The brief facts necessary for the disposal of this Writ Appeal are as follows:
2. The 2nd respondent college is an HT consumer under the electrical section Karaparamba in Kozhikode District with a sanctioned connected load of 281.3 KW and a contract demand of 50KVA. While the 2 nd respondent was established an aided college in the year 1952, and had been enjoying electricity supply under LT Tariff through various electric connections provided separately in each block owned by them, they had applied for an HT connection as early as in 2013 and were given the said connection with effect from 04.04.2013. At the time of sanctioning the said HT connection, the understanding between the appellant licensee and the 2nd respondent college was that the college was conducting only courses sanctioned for aided colleges, and there were no self-
financing courses conducted by the college.
3. In an inspection that was conducted in the premises of the 2 nd respondent on 12.07.2021, the Anti Power Theft Squad of the appellant found that, contrary to what had been declared at the time of grant of the HT connection to them, the 2nd respondent had, over the years from 2013 onwards, progressively introduced self-financing courses in the college. The appellant, therefore, drew up a mahazar at the premises and thereafter proceeded to issue WA NO. 149 OF 2023 :3: 2025:KER:40422 a provisional assessment order on 27.10.2021 proposing a demand of Rs.24,80,240/- in terms of Section 126 of the Electricity Act to cover a period of 94 months from April 2013 to the date of the inspection in 2021. The unauthorised use alleged by the appellant was that a portion of the connected load sanctioned to the 2nd respondent was used for the purposes of the self- financing courses conducted in the college, and further that an additional load of 16 KW was used for construction purposes in the said self-financing portion of the college. Although the 2nd respondent preferred a detailed objection to the provisional assessment order, the proposals in the provisional assessment were confirmed through a final assessment order dated 20.11.2021.
4. Aggrieved by the final assessment order, the 2nd respondent approached the Appellate Authority for electricity, who after hearing the 2 nd respondent, as also the representative of the appellant herein, reversed the final assessment done on the 2nd respondent and found that an unauthorised use of electricity as envisaged under Section 126 of the Electricity Act had not been made out against the 2nd respondent. In particular, the Appellate Authority relied on the provisions of Regulation 152 of the Kerala Electricity Supply Code, 2014, to find that in an incorrect application of tariff by the licensee, even while there was no change in the purpose of use of electricity by the consumer, would not attract the provisions of Section 126 of the Act. The Appellate Authority, therefore, found that the demand towards unauthorised use of electricity attributable to the self-financing section of the 2 nd respondent college could not be legally sustained. With regard to the unauthorised use of 16 KW for construction purposes, the appellant was given the liberty to consider the usage of 16 KW for construction purposes as mentioned in the site mahazar, afresh, in WA NO. 149 OF 2023 :4: 2025:KER:40422 terms of the provisions of Section 126 of the Electricity Act.
5. It was aggrieved by the findings of the Appellate Authority that the appellant herein approached the writ court through the Writ Petition aforementioned. The learned Single Judge, who considered the matter agreed with the findings of the Appellate Authority and dismissed the Writ Petition by finding that the impugned order of the Appellate Authority did not require any interference.
6. In the appeal before us, it is the submission of the learned Senior counsel Sri.Raju Joseph assisted by the learned counsel Sri.C.Joseph Antony that the provisions of Regulation 152 of the Kerala Electricity Supply Code, 2014, do not exclude situations such as the present from the applicability of Section 126 of the Electricity Act. It is contended that the consumer in question, viz. the 2nd respondent herein, had in fact consumed electricity by diverting a portion of the connected load for use in the self-financing section of its college when the HT connection was sanctioned for an aided college under HT II A tariff. Per Contra, Sri.George Sebastian, the learned counsel for the 2 nd respondent, would submit that the judgment of the learned single judge does not call for any interference.
7. On a consideration of the rival submissions, we find force in the submissions of learned Senior counsel for the appellant that the express provisions of Regulation 152 of the Electricity Supply Code clearly suggest that when there is a change in the purpose of use of electricity by the consumer, different from what was declared at the time of getting the connection, the WA NO. 149 OF 2023 :5: 2025:KER:40422 Regulation cited cannot come to the aid of the consumer to escape the rigour of Section126 of the Electricity Act. We find, however, that even in terms of Section 126 of the Electricity Act, it is incumbent upon the licensee to determine the entire period during which the unauthorised use of electricity had taken place, and if the period during which such unauthorised use of electricity had taken place cannot be ascertained, then the demand for unauthorised use of electricity has to be limited to a period of 12 months immediately preceding the date of inspection. In the instant case, while the appellant might have, at the inspection conducted on 12.07.2021, found that a portion of the connected load was attributable to the usage of electricity in the self-financing section of the 2nd respondent college, what appears to have been done by the authority, thereafter, is to look into the ratio of the batches in the self-financing section of the college as compared to the total batches in the self- financing and aided sections of the college put together, and arrive at the percentage attributable to the batches in the self-financing section. This percentage was then applied to the usage charges noted for the 94 months from April 2013 to the date of inspection to arrive at the unauthorised usage.
8. We must observe at this juncture that we find the above computation of unauthorised usage of electricity to be extraneous to the object of Section 126 of the Electricity Act, and therefore flawed. The ratio of the number of batches in the self-financing section, as compared to the total number of batches in both the self-financing and the aided sections of the college, cannot be a factor for determining the connected load attributable to the self-financing section of the college. In our view, to meet the object of S.126 of the Act, the Board should have ascertained the actual connected load WA NO. 149 OF 2023 :6: 2025:KER:40422 in the self-financing section of the college and determined the ratio of that connected load to the total connected load sanctioned for the college, and applied that ratio to the consumption of electricity during the various months to determine the unauthorised use of electricity. In mathematical terms, the formula would be as follows:
Unauthorised usage = (Actual connected load in the self-financing section divided by the total connected load sanctioned for the aided college) x consumption of electricity by the aided college as recorded in the meter.
9. The aforesaid formula when applied to each of the months of unauthorised use noticed in the institution would represent the charges that the appellant could collect from the 2 nd respondent in terms of Section 126 of the Electricity Act. We must hasten to add, however, that since in the instant case, the exact date from which the connected load attributable to the self- financing section, as noticed at the time of inspection of the premises on 12.07.2021, cannot be factually ascertained, the default provision under Section 126(5) would come into play and restrict the demand by the appellant against the 2nd respondent to a period of only 12 months immediately preceding the date of inspection.
10. We, therefore, set aside the impugned judgment of the learned Single Judge, as also Ext.P9 order that was impugned by the appellant in the Writ Petition, and direct that the appellant shall recompute the charges recoverable from the 2nd respondent in terms of Section 126 (5) of the WA NO. 149 OF 2023 :7: 2025:KER:40422 Electricity Act by (I) using the findings in the mahazar for calculating the connected load attributable to the self-financing section of the 2 nd respondent college and (ii) applying the formula aforementioned to calculate the unauthorised use of electricity in the self-financing section for a period of 12 months immediately preceding the date of inspection. Before raising a fresh demand as above, the appellant shall also afford an opportunity of hearing to the 2nd respondent or her representative.
Before parting with this appeal, and taking note of the submission of the learned counsel for the 2nd respondent that considerable amounts have been paid by way of statutory deposit at the time of preferring the appeal before the Appellate Authority, we make it clear that if there is any amount outstanding after adjusting the amount paid by the 2 nd respondent towards the fresh demand to be raised by the appellant, the excess amount shall either be refunded to the 2nd respondent or adjusted against future bills of the 2 nd respondent.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
P.M.MANOJ
JUDGE
mns
WA NO. 149 OF 2023 :8: 2025:KER:40422
APPENDIX OF WA 149/2023
RESPONDENT ANNEXURES
ANNEXURE R2(A) A TRUE COPY OF THE LETTER BEARING NO.
TS5/HT/PROVIDENCE COLLEGE/13-14/2528 DATED
24.10.2013 ISSUED BY THE DEPUTY CHIEF
ENGINEER, ELECTRICAL CIRCLE KOZHIKODE TO THE
SPECIAL OFFICER (REVENUE) KSEB,
THIRUVANTHAPURAM