Kerala High Court
Union Bank Of India vs The Deputy Chief Engineer, Kseb on 11 January, 2023
W.P.(C) No. 20553/2014 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
WP(C) NO. 20553 OF 2014
PETITIONER/S:
UNION BANK OF INDIA
VADANAPALLY BRANCH, MIKAS BUILDING, VADANAPALLY
THRISSUR, 680 614 REPRESENTED BY ITS BRANCH MANAGER
SRI.DICKSON JOSEPH
BY ADVS.
SRI.A.S.P.KURUP, SC, UBI
SRI.SADCHITH.P.KURUP
RESPONDENT/S:
1 THE DEPUTY CHIEF ENGINEER,
KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE
IRINJALAKKUDA, THRISSUR-680 121.
2 THE ASSISTANT ENGINEER
KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION
VADANAPPALLY, PIN. 680 614.
3 THE SUB ENGINEER
KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION
VADANAPPALLY, PIN. 680 614.
4 THE SENIOR SUPERINTENDENT
KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION
VADANAPPALLY, PIN. 680 614.
5 ADDL. R5 IMPLEADED:
THAHIRA KUNHIMOHAMED
AGED 46, W/O.KUNHIMOHAMED, MATHILAKATH, CHIRAKKUZHI
HOUSE, TRITHALUR WEST.P.O., THRISSUR -680 619.
(ADDL. R5 IMPLEADED AS PER ORDER DATED 25.09.2014 IN I.A.
NO. 12845/2014]
BY ADVS.
SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD
SRI.LIJU. M.P
R1 TO 4 - SRI.B.PREMOD,SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 20553/2014 :2:
'C.R'
SHAJI P. CHALY, J.
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W.P.(C). No. 20553 of 2014
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Dated this the 9th day of January, 2023.
JUDGMENT
This writ petition is filed by the Union Bank of India
challenging Exhibit P3 bill dated 02.12.2013 issued by the Anti
Power Theft Squad (APTS) and Exhibit P7 order dated 27.05.2014
passed by the appellate authority under Section 127 of the
Electricity Act, 2003 ('Act, 2003' for short) r/w the Kerala State
Electricity Board (Terms and Conditions of Supply), 2005 ('Supply
Code, 2005' for short) as amended from time to time, whereby the
appellate authority affirmed the bill issued by the Anti Power Theft
Squad.
2. Brief material facts for the disposal of the writ petition are
as follows:
The petitioner is a banking company constituted under the
Banking Companies (Acquisition & Transfer of Undertakings) Act,
1970. The petitioner Bank, for the purpose of providing ATM facility
for its customers, took on rent a building bearing No.VII/491F of
Vadanappally Grama Panchayat having an area of 688 sq. meters
by executing a lease agreement on 01.01.2007, as is evident from
Exhibit P1. According to the petitioner, after taking the building on
rent, the machinery was installed and the premises became
functional from 2007 onwards. The electricity connection to the
premises was a single phase connection under the tariff LT VI C. It
is further pointed out that the Bank was being provided with a
monthly bill in respect of electricity connection and the same was
promptly being paid by the petitioner Bank. According to the
petitioner, in respect of additional consumption, on account of the
energy charges, the Bank was directed to pay the increased amount
of caution deposit.
3. While so, on 29.11.2013, inspection was conducted by the
Anti Power Theft Squad under the leadership of the Senior
Superintendent, Kerala State Electricity Board, respondent No. 4, as
is evident from Exhibit P2 site mahasar dated 29.11.2013.
Thereafter, Exhibit P3 bill was issued for an amount of
Rs.2,25,334/- for the unauthorised use of electricity from the month
of November, 2007 till November, 2013. The petitioner filed Exhibit
P4 objection dated 23.12.2013 and has deposited 50% of the
amount assessed, it is submitted.
4. The case projected by the petitioner is that even though
an objection was raised, the bill was confirmed. Being aggrieved,
Exhibit P6 appeal was preferred. However, the appellate authority
also rejected the contentions and affirmed the bill issued by the Anti
Power Theft Squad. It is also submitted that the petitioner later
filed Exhibit P8 application dated 04.12.2013 for the regularization
of the additional load used for the premises taken on lease. Now,
the case projected by the petitioner is that the appellate authority
did not consider the contentions raised by the writ petitioner in its
proper perspective and therefore, the bill as well as the appellate
order is illegal and arbitrary.
5. It is further submitted that the usage of electrical energy
was correctly metered and the petitioner had been promptly paying
the bill for the same and therefore, there is no unauthorised usage
of electricity so as to issue a huge demand as is seen from Exhibit
P3. Further, the 4th respondent is not a person competent enough
to conduct inspection and take action against the unauthorised use
of electricity.
6. The petitioner has also raised a contention that the claim
for the additional amount on the basis of the alleged unauthorised
load is barred by law of limitation. Other contentions are also
raised by the petitioner relying upon Section 126 of the Act, 2003.
7. I have heard the learned counsel for the petitioner Si.
Sadchith P. Kurup and the learned Standing Counsel for the Kerala
State Electricity Board Sri. B. Pramod, and perused the pleadings
and material on record.
8. The learned counsel for the petitioner has advanced
arguments on the basis of the pleadings deliberated above.
9. The learned Standing Counsel, on the basis of the counter
affidavit filed, has fully supported the bill issued by the Anti Power
Theft Squad and the order passed by the appellate authority.
10. The sole question to be considered is whether any
manner of interference is required to the Exhibit P3 bill and Exhibit
P7 order passed by the appellate authority in a proceeding under
Article 226 of the Constitution of India.
11. On a reading of the order passed by the appellate
authority, it is quite clear and evident that the appellate authority
has taken into account the entire contentions advanced by the writ
petitioner bank and has arrived at the conclusion that the petitioner
has made unauthorized use of electricity in terms of the provisions
of Section 126 of the Act, 2003 r/w regulation 50 of the supply
code, 2005. In order to have a clarity for the issue, the order
passed by the appellate authority is extracted hereunder:
"Observations and Findings
After considering the factual matrix of the issue along
with the statements of appellant the following points should
be considered.
1. whether the method of calculating the penal bill is correct.
2. Period of calculation is as per order.
Point-1:- According to clause 26 of KSE Board Terms and
Conditions of Supply, 2005, "Should the consumer, at any time,
after the supply of energy has been commenced, desire to
increase the number or wattage or capacity of lights, fans or
motors etc. on his premises on a temporary or permanent basis
or in any way alter the position of his wiring therein, request
thereof must be made by the consumer in writing to the
Board." In this case, it is revealed that the consumer had
neither made such request nor produced connected papers for
regularizing his additional loads before the respondent. He
has no explanation as to why without obtaining such sanction
be resorted to use additional load in the premises. The
appellant has breached the agreement, rules, and regulations
etc. Here, the Asst. Manager who appeared for hearing on
behalf of the appellant has already that they have connected
AC, one year before the inspection date. So method of
calculation is correct.
Point-2: As per Section 26(5) of the Electricity Act, 2003
if the period during which unauthorised use of Electricity has
taken place, cannot be ascertained such period shall be limited
to a period of 12 months immediately preceding date of
inspection. Here, the appellant has agreed that the connection
was effected in the Bank along with ATM on 2007. It is also
clear as per service connection agreement that the connection
was effected on 2007 with connected load of 780 watts under
LT VI C tariff. The load used other than 780 watts is
unauthorised additional load. So period of billing is as per
order.
In this circumstance, I do not find any merit to review on
the Penal assessment made by the assessing officer and so
cannot be admitted.
Decision
In the backdrop of the above, I am of the considered
view that there is no necessity which warrants modifying or
revision of the final bill issued by the assessing officer and
hence the appeal petition is dismissed herewith. As per the
provisions 51(2) of Terms and Conditions of Supply, 2005,
Penalty for unauthorised additional load shall be levied till
they said load is removed or regularised as per rules till
31.03.2014 and action shall be initiated by the respondent vide
Regulation 153 of the Supply Code, 2014 from 01.04.2014.
Interest for belated payment need not be levied for the appeal
pending period."
12. It can be seen that the entire aspects dealt with by the
appellate authority is based on facts. The order was passed by the
appellate authority after providing an opportunity of hearing and
participation to the petitioner.
13. The paramount contention advanced by the petitioner is
that the issue raised as per Exhibit P3 is barred by limitation. It is
also pointed out that additional charges that can be levied at the
most is only for a period of 12 months in contemplation of Section
126(5) of the Act, 2003. To have a clear picture of the said
contention raised by the petitioner, I think, it is only appropriate
that Section 126 of the Act, 2003 is extracted, and it reads thus:
"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
unauthorised use of electricity, he shall provisionally assess to
the best of his judgment 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.
1[(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:
2* * * * *
3[(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
unauthorised use of electricity has taken place and if, however,
the period during which such unauthorised use of electricity
has taken 60 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 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
2[(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 authorised.]"
14. Therefore, it can be seen that if the unauthorized use of
electricity cannot be ascertained alone, such period shall be limited
to a period of 12 months immediately preceding the date of
inspection. It is also clear from Section 126(6)(b)(v) of the Act,
2003 that if electricity is used exceeding the authorized supply, it is
an unauthorized use. Moreover, regulation 26 of the Supply Code,
2005 makes it clear if power exceeding the permissible connected
load is required, it shall be requested and granted by the board.
15. This is a case where the Board has clearly found that
after securing electricity connection, additional load was being used
and monthly bills for the additional burden were being paid without
any protest from the year 2007 itself for the usage of electricity
over and above the connected load. This is clear evidence to show
that there is a definite period ascertainable for the unauthorized
use. It was taking into account the said material piece of evidence
that the appellate authority had arrived at the conclusions. It was in
addition that the appellate authority found that air conditioners
were fitted later, still exceeding the connected load.
16. In fact, the connected load that was provided to the petitioner
was 780 watts. However, the same has exceeded from the year
2007 itself, and consequent to the air conditioners fitted in the
premises, the connected load again varied, thus making the
situation worse. I am also of the view that, the limitation under the
Limitation Act does not hit the claim of the Board as contented by
the petitioner, because the instant violation is a continuous and
recurring one, renewing the dues every day, till the unauthorized
load is dismantled. This position would be explicit and clear from
Section 56 of the Act, 2003, which reads thus:
"56. (Disconnection of supply in default of payment): -- (1)
Where any person neglects to pay any charge for electricity or
any sum other than a charge for electricity due from him to a
licensee or the generating company in respect of supply,
transmission or distribution or wheeling of electricity to him, the
licensee or the generating company may, after giving not less
than fifteen clear days' notice in writing, to such person and
without prejudice to his rights to recover such charge or other
sum by suit, cut off the supply of electricity and for that purpose
cut or disconnect any electric supply line or other works being
the property of such licensee or the generating company
through which electricity may have been supplied, transmitted,
distributed or wheeled and may discontinue the supply until
such charge or other sum, together with any expenses incurred
by him in cutting off and reconnecting the supply, are paid, but
no longer:
Provided that the supply of electricity shall not be cut off if such
person deposits, under protest, -
(a) an amount equal to the sum claimed from him, or
b) the electricity charges due from him for each month
calculated on the basis of average charge for electricity paid by
him during the preceding six months, whichever is less, pending
disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the
time being in force, no sum due from any consumer, under this
section shall be recoverable after the period of two years from
the date when such sum became first due unless such sum has
been shown continuously as recoverable as arrear of charges for
electricity supplied and the licensee shall not cut off the supply
of the electricity."
17. Therefore the limitation of two years prescribed under the
said provision will not apply to the case on hand, being a continuous
one. Typical is the provision contained under Regulation 136 of the
Kerala Electricity Supply Code, 2014. This is in addition to the
factors provided under Section 126 (5) of the Act 2003.
18. Considering the facts, law, and circumstances above, it
can be seen that the petitioner has not made out any case of
arbitrariness, illegality, or other legal infirmities in the order passed
by the appellate authority justifiable to be interfered with in a
proceeding under Article 226 of the Constitution of India.
Needless to say, writ petition fails and accordingly, it is
dismissed.
sd/- SHAJI P. CHALY, JUDGE.
Rv
APPENDIX OF WP(C) 20553/2014
PETITIONER'S EXHIBITS:
P1 EXT.P1 - COPY OF LEASE DEED DATED 1-1-2007
BETWEEN PETITIONER BANK AND THE LESSOR
P2 EXT.P2 - COPY OF SITE MAHAZAR DATED 29-11-2013
PREPARED BY 3RD RESPONDENT
P3 EXT.P3 - COPY OF ELECTRICITY BILL DATED 2-12-
2013 ISSUED BY 4TH RESPONDENT
P4 EXT.P4 - COPY OF OBJECTION DATED 23-12-2013
FILED BY PETITIONER BEFORE THE 1ST RESPONDENT.
P5 EXT.P5 - COPY OF BILL DATED 23-12-2013 ISSUED BY
RESPONDENTS
P6 EXT.P6 - COPY OF APPEAL DATED 25-2-2014 FILED BY
PETITIONER BEFORE HE APPELLATE AUTHORITY.
P7 EXT.P7 - COPY OF ORDER DATED 27-5-2014 ISSUED
BY 1ST RESPONDENT
P8 EXT.P8 - COPY OF APPLICATION DATED 4-12-2013
FILED BY PETITIONER FOR REGULARISATION.
RESPONDENT'S EXHIBITS: NIL
True Copy
/P S To Judge/
rv
