K.A.Azeez vs Kerala State Electricity Board
2021 Latest Caselaw 11640 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

           FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                          WP(C).No.9308 OF 2010(K)


PETITIONER/S:

                K.A.AZEEZ, S/O. LATE K. ABDU,
                KIZHHISSERY HOUSE, P.J.ANTONY ROAD, VADUTHALA, NOW
                RESIDING AT 48/206 (J), GREEN RIPPLE ROAD,, SAMIPADY,
                ELAMAKKARA, COCHIN-26.

                BY ADVS.
                SRI.LAL K.JOSEPH
                SRI.P.MURALEEDHARAN (THURAVOOR)

RESPONDENT/S:
      1       KERALA STATE ELECTRICITY BOARD
              VYDHYUDHIBHAVANAM, PATTAM, THIRUVANANTHAPURAM.,
              REPRESENTED BY ITS SECRETARY.

       2        THE DEPUTY CHIEF ENGINEER, KERALA STATE
                ELECTRICITY BOARD, ELECTRICAL CIRCLE ERNAKULAM.

       3        THE EXECUTIVE ENGINEER, KERALA STATE
                ELECTRICITY BOARD, ELECTRICAL DIVISION,ERNAKULAM.

       4        THE ASSISTANT ENGINEER
                KERALA STATE ELECTRICITY BOARD, ELECTIRCAL SECTION,
                VADUTHALA, ERNAKULAM.

       5        KERALA STATE ELECTRICITY REGULATORY
                COMMISSION, VELLAYAMBALAM, THIRUVANANTHAPURAM.,
                REPRESENTED BY ITS CHAIRMAN.

                R1 BY SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE
                ELECTRICITY BO
                R1 BY SRI.P.P.THAJUDEEN, SC, K.S.E.B
                R1 BY ADV. SRI.S.SREEKUMARSCKSERC
                R1 BY ADV. SRI.T.R.RAJANSCK.S.E.B.
                R1 BY ADV. SRI.ANEESH JAMESSCKSEB REGULATORY COM
                R1, R5 BY SRI.S.SUJIN, SC, ELECTRICITY REGULATORY
                COMMISSION

                R1 TO 4-SRI.SUDHEER GANESH KUMAR,SC

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2021,
     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 9308/2010                      :2:



                                                             'CR'

                 Dated this the 9th day of April, 2021.

                            JUDGMENT

The petitioner, one of the Directors of a company namely West

Rock Properties Ltd., registered under the Companies Act engaged in

the business of property development, challenges Regulation 51(1) of

the KSEB Terms and Conditions of Supply, 2005 and to declare the said

provision as ultra vires of the Electricity Act, 2003 ('Act, 2003' for

short) and also to quash Ext.P1 invoice, Ext.P2 notice, Ext.P9 order

dated 27.01.2010 passed by the 4 th respondent -Assistant Engineer of

the Kerala State Electricity Board Ltd (K.S.E.B Ltd), Ext.P11 order

dated 07.02.2008 issued by the first respondent K.S.E.B Ltd making

certain clarifications with respect to the manner in which penalty is to

be imposed for the unauthorised connected load provided under

Section 126 of the Act, 2003 and Ext.P12 demand notice directing the

petitioner to pay an amount of Rs.8,75,902/-, failing which recovery

action was threatened.

2. Brief material facts for the disposal of the writ petition are as

follows:

The petitioner has availed an electricity connection having

consumer No. 18147 in his personal capacity for the purpose of

constructing a multi storied building complex. The issue started when

Ext.P1 notice dated 17.08.2009 was issued to the petitioner directing

him to pay an amount of Rs.8,75,902/- towards the short assessment

against fixed charges and energy charges for the period from 07/2007

to 05/2009. The allegation was that the petitioner had connected an

additional load of 23 KW, when the authorised connected load was

only 7 KW. According to the petitioner, the said allegation is not

correct, as in the invoice issued from 16.07.2007 onwards, the

authorised connected load of the petitioner is shown as 31000 Watts

(31KW); whereas, the present assessment is made by taking the total

load as 23000 Watts.

3. The case of the petitioner is that the connected load of the

petitioner, though not enhanced by any order from 7 KW, since the bills

are issued for 31000 Watts, there is no unauthorised load. Even

though the petitioner submitted an objection to Ext.P1 demand notice

and ExtP2 calculation statement, the Board was not prepared to accept

the contention raised by the petitioner and it was accordingly that

Ext.P9 final determination order was passed on 27.01.2010 after

providing an opportunity of hearing to the petitioner.

4. The learned counsel for the petitioner contended that there is

no unauthorised load in the premises, as in all the bills issued to the

petitioner from 16.07.2007 onwards, the authorised load of the

petitioner is shown as 31KW; whereas, the present penalty is based on

the allegation that the load exceeded by the petitioner is 23KW; that

the penalty for the normal consumption charges was also assessed by

the Board which is not permitted under law and therefore, the present

penalty imposed amounts to a mistake committed by the Board, since

the connected load stands regularised as is evident from the demand

made for 31KW; that no proceedings under Section 126 of the Act,

2003 can be initiated for unauthorised additional load as it will not

come under the definition of 'unauthorised use of electricity' as

defined in the explanation to Section 126 of the Act, 2003; that the

only provision which enables the Board for penalisation of additional

load is Regulation 51(1) of the KSEB Terms and Conditions of Supply,

2005, which was prepared by the first respondent Board and approved

by the 5th respondent i.e., the Kerala State Electricity Regulatory

Commission and since there is no provision in the Act, 2003

empowering the Commissioner or the Board to make any provision for

penalisation, Regulation 51(1) of the KSEB Terms and Conditions of

Supply, 2005 cannot be enforced; and that even if the Board is vested

with powers for imposing penalty for unauthorised load, the penalty

imposed is unreasonable and irrational and therefore, there is no

provision of law enabling the Board to recover the amount from the

petitioner.

5. No counter affidavit is filed by the KSEB. However, the learned

Standing Counsel for the Board has fully supported the findings

rendered by the primary authority under the provisions of the Act,

2003 and the Regulations thereto.

6. I have heard the learned counsel for the petitioner Sri. Lal K.

Joseph and the learned Standing Counsel for the KSEB Sri. Sudheer

Ganesh Kumar and Sri. G. Pramod, and perused the pleadings and

materials on record.

7. It is an admitted fact that though under Section 127 of the

Act, 2003, an alternative remedy is available to the petitioner to file an

appeal, the petitioner has not cared to do so. The sole question

emerges for consideration is whether any manner of interference is

warranted to Ext.P9 order passed by the Assistant Engineer as per

Section 126 of the Act, 2003. The said order reads thus:

"Findings Hearing examined all the documents and files related to this case and the provisions of Electricity Act, 2003. The undersigned has come to the following conclusions and decisions thereof.

Officials of Electrical Section Vaduthala conducted a surprise

inspection in the premises of Con No.18147 and detected unauthorized additional load of 16KW over and above the sanctioned inad of 7KW. The petitioner is not having any dispute with KSEB regarding the presence of additional load detected in this premises. He agreed that by levying Rs 3100/- as fixed charge in each monthly bill he is permitted to use additional load corresponding to fixed charge of Rs 3100/-.

Bill issued to the consumer as per Order No.B.O (FM) No.368/2008(DPCI/C-G1/182/2007) dt. Tvm 07-02-08. The Account General issued directions to issue back assessment bill to the consumer by imposing this order. The Hon. High Court judgment quoted by the consumer is purely applicable to a particular consumer only.

The consumer has not yet been submitted any application for regularization of connected load and no such approval orders issued from Board officials. Further the consumer has not remitted any ACD for regularization of UAL till the date. The undersigned examined this dispute in detail. The monthly invoice shows a connected load 31KW with effect from 16.07.2007. It is understood that it was actually a clerical error occurred in the computer system from the part of the staff who prepared this monthly bill and the same was continued for the last few years. The consumer did not make any complaint about this error and this was continued in succeeding bills. But it is clear that the petitioner has not submitted any application for enhancing the connected load during this period. The consumer has remitted Rs.3100/- as illustrated below.

                 Fixed Charge         = 7KW X Rs.100        = 700.00
                 Penal Fixed Charge = 16KWx 100 x 1.5 = 2400.00
                                                                 ---------
                 Total Fixed Charged per month Rs. =              3100.00
                                                                 ======

It is very clear that the petitioner remitted the penalization charges till the date of the aforesaid back assessment bill without any dispute. Hence the presence of the 16KW unauthorized additional load is very well established and the short assessment bill issued to the consumer for Rs.8875902/- is in order.

The petitioner is hereby directed to remit the amount on or before 03-02-10 to avoid Revenue Recovery Proceedings. The petitioner is free to file an appeal before the Deputy Chief Engineer, Electrical Circle, Ernakulam within 30 days from the date of receipt of this order.

The objection petition is disposed as above."

8. The first issue that was raised by the petitioner is in regard to

the power of the State Regulatory Commission or the Kerala State

Electricity Board to make KSEB Terms and Conditions of Supply, 2005.

The Act, 2003 was brought into force on and with effect from

02.06.2003 by publication in the Gazette of India dated 02.06.2003.

Section 126 of the Act, 2003, which deals with 'assessment' comes

under Part XII dealing with 'investigation and enforcement' and it

reads thus:

"Section 126: (Assessment): -- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

[(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.] (4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:

[(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.] (6) The assessment under this section shall be made at a rate

equal to [twice] the tariff rates applicable for the relevant category of services specified in sub-section (5).

Explanation.- For the purposes of this section,- --

(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;

(b) "unauthorised use of electricity" means the usage of electricity -

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or [(iv) for the purpose other than for which the usage of electricity was authorised; or

(v) for the premises or areas other than those for which the supply of electricity was authorized."]

9. Section 126 has undergone an amendment on and with effect

from 15.06.2007, whereby sub-Sections (5) and (6) were suitably

amended enhancing the penalty also. Going by the scheme of Section

126, it is clear that if and when it was found that there is unauthorised

connected load, the Board officials are vested with powers to issue a

notice calling for objections to the provisional assessment made

against the unauthorised connected load and after receiving the

objection, the Board authorities are vested with powers to pass the

final determination order, after considering the objections raised to

the provisional assessment. The term 'unauthorised use of electricity'

is defined under clause (b) of Explanation to Section 126(6) of Act,

2003 to include the usage of electricity for the purposes for which it

was not authorised and the usage of electricity to any premises or

areas other than those for which the supply of electricity was

authorized.

10. The learned counsel for the petitioner in that regard has

invited my attention to the judgment of a learned Division Bench of

this Court in Sulabha Marketing Pvt. Ltd. v. KSEB,

Thiruvananthapuram and others [2017(3) KHC 563]. Paragraph

31 of the said judgment is relevant to the context and it 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 S.126(1) of the Act.

(ii) The expression 'unauthorised use of electricity' under S.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 S.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 S.126 of the Act.

(iv) The term 'tariff' in S.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

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 S.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 upgradation of the existing distribution system or

enhancement of voltage level of supply.

(vii) In all other cases falling under Explanation (b) to S.126 of

the Act, the assessing officer is empowered to assess

unauthorised use of electricity at the rate prescribed in S.126(6)

and for the period specified in S.126(5), as amended by the

Electricity (Amendment) Act, 2007 for both fixed charges and

enerenergy 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 S.126 of the Act for the period specified in

S.126(5) and at the rate specified in S.126(6) of the Act. As such,

Regulation 51(1) of the Conditions of Supply, 2005 is neither

ultra vires the provisions of S.126 of the Act nor unenforceable.

(ix) What is contemplated under Board Order dated 07/02/2008

is only assessment of unauthorised use of electricity in terms of

S.126 of the Act, as amended by the Electricity (Amendment)

Act, 2007, for the period specified in S.126(5) and at the rate

specified in S.126(5) of the Act. As such, the said Board Order is

neither ultra vires the provisions of S.126 of the Act nor

unenforceable."

11. The learned counsel for the petitioner relied upon finding No.

(vi). I cannot agree with the same, since the said finding would apply

only in a case where usage of excess quantity of electricity than the

sanctioned connected load takes place without adding any other

equipment to interfere with the sanctioned connected load. In my

considered view, the issue raised by the petitioner is guided by finding

Nos. (ii), (iii) and (iv) of the judgment, which specifies that whenever a

consumer commits breach of the terms and conditions of the

agreement, regulations and the provisions of the Act by consuming

electricity/connected load, such consumption 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,

even without any intention. Therefore, I am of the definite view that

the petitioner is not entitled to get the benefit of finding No.(vi) of the

said judgment.

12. It is an admitted fact that the connected load sanctioned to

the petitioner was 7 KW. However, due to the usage of other

equipments, connected load exceeds by 23KW and thus reads 31KW.

Which thus means, there was an unauthorised connected load of

23KW. However, the petitioner contends that the billing officer issued

the bills for the period in question for 31KW and therefore, it can only

be presumed that the Board has accepted and approved the connected

load availed by the petitioner as 31KW. In fact, admittedly the

connected load that was granted to the petitioner was only 7KW.

Merely because the Billing Officer has issued bills for the consumption

of the electricity recording the connected load as 31KW, it would not

make the additional connected load authorised. The said issue is taken

care of under Section 126 of the Act, 2003 itself. The Kerala State

Electricity Supply Code, 2005 is made by the Kerala State Electricity

Regulatory Commission by virtue of the powers conferred by Section

50 r/w Section 181 of the Act, 2003. Regulation 27A of the Kerala

Electricity Supply Code, 2005, which deals with 'method of assessment

of the electricity charges payable in case of unauthorized use of

electricity and theft of electricity pending adjudication by the

appropriate court', reads thus:

"27A. Method of assessment of the electricity charges payable in case of unauthorized use of electricity and theft of electricity pending adjudication by the appropriate court. (1) Unauthorized use of electricity.

(a) Assessment. - If on an inspection of any place or premises or after inspection of equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or any other person benefited by such use.

(b) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(c) The person on whom a notice has been served under subsection (b) shall be entitled to file objections, if any against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of electricity charges payable by such person.

d) Any person served with the order of provisional assessment may accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. In case the

person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.

(e) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person occupier or possessor of such premises or place.

(f) The assessment under this section shall be made at a rate equal to one and a half times the tariff applicable for the relevant category of services specified in sub clause (e)."

13. Therefore, on a reading of Section 126 of the Act, 2003 and

Regulation 27A, it is clear that a clear cut procedure is prescribed for

dealing with unauthorised load, and merely because the Billing Officer

has calculated the excess connected load in the successive monthly

bills, that will not regularise the unauthorised connected load. A

connected load is fixed by the Board and if additional connected load is

required, necessary sanction has to be secured from the Board

authorities and thus refix the connected load. There is no case for the

petitioner that he has sought for re-fixing the connected load provided

to him, which was only 7KW.

14. Thus, on appreciation of the provisions of the Act, 2003 and

the Kerala Electricity Supply Code, 2005, it is clear that the assessing

officer has rightly proceeded against the petitioner, followed the

mandatory requirements under law and passed the final order. Even

though the petitioner had a statutory remedy to prefer an appeal

under Section 127 of Act 2003 read with regulation 27A of the Kerala

Electricity Supply Code, 2005, he has not availed the said benefit.

Reckoning all those aspects, it cannot be said that the Assessing

Officer has committed any illegality or arbitrariness in passing the final

order determining the liability of the petitioner for the additional

unauthorised load of 23KW.

15. Be that as it may, the petitioner has raised a contention that

Regulation 51 of KSEB Terms and Conditions of Supply, 2005 is ultra

vires the provisions of Act, 2003, since there is no enabling power for

the KSEB to make any such regulation. However, Section 30 of the

Kerala Electricity Supply Code, 2005 makes it clear that the licensee

i.e., the KSEB Limited within one month of coming into force of the

Supply Code, 2005 shall submit to the Commission for approval the

"Draft Terms and Conditions of Supply" in accordance with the Supply

Code, 2005 in regard to the following aspects mentioned thereof:

a)     Application form for supply of electricity
b)     Estimate amount for giving WP/OH service connection
c)     Estimate amount for giving service connection - HT
d)     Estimate amount for extension of line - Single Phase/Three Phase. LT
e)     Estimate amount for extension of line - HT/EHT
f)     Estimate amount for HT/EHT sub-station
g)     Format of agreement for supply of electricity.
h)     Format of installation completion report
i)     Format of no-objection certificate
j)     Initial Security deposit towards charges for power supply for different
       category of consumers (LT, HT and EHT)
k)     Security deposit for meter/metering equipment for different categories
       of consumers. (LT, HT and EHT)

l)     Schedule of miscellaneous charges

16. Therefore, on a reading of the said provision, it is clear that

the KSEB was duty bound to make the Terms and Conditions of Supply

and therefore it can only be legally presumed that by virtue of the

power conferred under Regulation 30 of the Supply Code, 2005, the

KSEB Terms and Conditions of Supply, 2005 was made by the Board.

Regulation 51 of the KSEB Terms and Conditions of Supply, 2005 deals

with 'unauthorised load', which reads thus:

"51. Unauthorised load--Where a Low Tension Consumer exceeds the connected load and/or resorts to unauthorized additional load and if the connected load exceeds 100 KVA, the unauthorized

additional load shall be disconnected by the consumer with-in twenty-four hours of detection of the unauthorized load by the Board's officers or take action to regularize the unauthorized additional load. If he fails to disconnect the unauthorized load within the time stipulated, the power supply to the premises shall be disconnected after the expiry of twenty-four hours. A notice to this effect shall be issued to the consumer by the Board's officer immediately on detection of the unauthorized additional load.

(1) The unauthorized additional load in case of LT/HT/EHT consumers shall be penalized as per Clause 50 (5) & (6) above.

(2) The penalty for unauthorized additional load shall be levied till the said unauthorized additional load is removed or regularized as per rules.

If the consumer fails to pay the bill amount, the service shall be disconnected without further notice. It shall be reconnected only after payment of penalty and other charges, if any, as per rules and removal/regularization of the unauthorized additional load by the consumer (3) If the consumer wants to continue to connect the additional load and if the total connected load exceeds 100 KVA, he has to convert the Low Tension service into High Tension for which he shall be given three months time from the date of detection of unauthorized load. But the penalty as in clause 50 (1) shall be payable by the consumer till the conversion of the service is permitted by the competent authority.

(4) In case of Low Tension consumers whose connected load does not exceed 100 KVA but who have exceeded the contracted load by 10% by adding unauthorized additional load, the procedure mentioned in clause 50 (1)shall be applicable. The unauthorized

load should be regularized by the consumer within a period of three months on application to the Assistant Executive Engineer and after payment of additional security deposit and other charges as per rules. The regularization shall be given effect from the date of collection of additional security deposit and other charges, if any, as per rules. The Assistant Executive Engineer shall issue proceedings to this effect. Penal charges as mentioned in clause 50 (1) shall be paid till the date of payment of additional security deposit.

(5) In the case of HT and EHT consumers the unauthorized additional load shall got disconnected by the consumer within twenty-four hours of detection of the unauthorized load by the Board's officer or take action to regularize the unauthorized additional load. A notice to this effect shall be issued to the consumer by the Board's officer immediately on detection of the unauthorized load. If the consumer fails to disconnect the unauthorized load within the time stipulated, the power to the premises shall be disconnected after the expiry of twenty-four hours.

As per agreement, change in installation should be with the permission of the KSE Board. Hence loads connected in excess of the connected load specified in the agreement shall be the additional unauthorized load and will be treated as unauthorized MD for charging penalty.

(6) The tariff applicable for charging the penalty shall be the HT/EHT tariff that would have been applicable for the unauthorized load depending upon the purpose for which the connection was utilized. If the consumer fails to pay the bill amount, the service shall be disconnected without further notice. It shall be reconnected only after payment of penalty and other charges, if any, as per rules

and removal/regularization of the unauthorized additional load by the consumer on application before the competent authority within a period of three months from the date of detection of the unauthorized additional load.

(7) Any person aggrieved by a final order of assessment under sub clause (5) & (6) above may, within thirty days of the said order, prefer an appeal in Form No.18 accompanied by the fee at the rate ordered by the Commission from time to time to the Deputy Chief Engineer of the Electrical Circle concerned.

17. Moreover, Regulation 51 of the KSEB Terms and Conditions

of Supply, 2005 is only an enabling provision empowering the Board

officials to take action against the unauthorised load and to regularise

the same, which can only be said to be a provision consequent to

Section 126 of the Act, 2003 and Regulation 27A of the Supply Code,

2005. The said aspect was also considered by the Division Bench in

Sulabha Marketing Pvt. Ltd. (supra), wherein it was held that

Regulation 51(1) of the KSEB Terms and Conditions of Supply, 2005 is

neither ultra vires the provisions of Section 126 of the Act nor

unenforceable. Therefore, the challenge made against Regulation 51

of the KSEB Terms and Conditions of Supply, 2005 is ultra vires of the

Act, 2003 cannot be sustained under law.

18. Taking into account the above factual and legal

circumstances, I do not think, the Assessing Officer has committed any

act of illegality or arbitrariness in passing Ext.P9 order dated

27.01.2010 justifying this Court to interfere by exercising the power of

judicial review under Article 226 of the Constitution of India. In fact,

no interim order was granted by this Court against the recovery of the

amount and therefore, if the amount is not already recovered by the

Board, the petitioner is given the liberty to pay the amount in two

instalments, first of which shall be paid within 45 days from today and

the balance amount within another 45 days.

Upshot of the above discussion is that the writ petition fails and

accordingly, it is dismissed, subject to the time granted for payment

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE BILL DATED 17-08-2009.

EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 17-08-

2009.

EXHIBIT P3 TRUE COPY OF THE PENAL BILL ON 22-03-2006 FOR AN AMOUNT OF RS. 30,400/-.

EXHIBIT P4 TRUE COPY OF THE INVOICE DATED 16-07-2007.

EXHIBIT P5 TRUE COPY OF THE BILL DATED 15-06-2007.

EXHIBIT P6 TRUE COPY OF THE COMPLAINT BEFORE THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 4-11-2009.

EXHIBIT P8 TRUE COPY OF THE OBJECTIONS DATED 23-11-2009.

EXHIBIT P9 TRUE COPY OF THE ORDER BEARING NO. DB41.VDLA-

AE/09-10/DATED 27-01-2020.

EXHIBIT P10 TRUE COPY OF THE B.O.(FB) NO. 1291/2002(PLG.COM 4206/01DATED 18-09-2002.

EXHIBIT P11 TRUE COPY OF THE B.O.(FM) NO. 368/2008 (DPCI/C-

G1/182/2007 DATED 07-02-2008 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE DEMAND NOTICE DATED NIL.

/True Copy/

P.S To Judge.

rv