Kerala High Court
Kerala State Electricity Board Ltd vs The Kerala State Electricity Appellate ... on 28 May, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 8072 OF 2020
PETITIONER:
KERALA STATE ELECTRICITY BOARD LTD.,
VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY.
BY ADV.
SRI. B. PREMOD
RESPONDENTS:
1 THE KERALA STATE ELECTRICITY APPELLATE AUTHORITY
(CONSTITUTED UNDER SECTION 127 OF THE ELECTRICITY
ACT 2003), CC 51/52, NEAR 110 KV SUB STATION,
VYTTILA, KOCHI - 682019.
2 THE ASSESSING OFFICER (ASSISTANT ENGINEER),
ELECTRICAL SECTION, KSEBL MUDAPPALLUR,
PALAKKAD DISTRICT- 678014.
3 K. P. SIYAD,
M/S. GR TIMBER AND SAW MILL, IX/247B,
PANTHAPARAMBU, MUDAPPALLUR P. O.,
PALAKKAD DISTRICT - 675705.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 8072 OF 2020
2
DINESH KUMAR SINGH, J.
--------------------------
W.P.(C) No. 8072 of 2020
-------------------------
Dated this the 28th day of May, 2024
JUDGMENT
1. Despite service of notice as per office report dated
01.09.2021 on the 3rd respondent, no one has put in appearance
on behalf of the 3rd respondent.
2. The present writ petition has been filed by the KSEB
impugning the Order dated 04.11.2017 passed by the Kerala
State Electricity Appellate Authority constituted under Section
127 of the Electricity Act, 2003 (hereinafter referred to as the
'Electricity Act' for short) in appeal No. 219/2017.
3. The 3rd respondent, a consumer was given LT IV A
industrial tariff with a sanctioned connected load of 77.875 KW
and contract demand of 87 KVA. This electricity connection was
meant to run a saw mill in the name and style of "G. R. Timbers &
Saw Mill". The energy charges were to be collected under LT IV
A, industrial tariff. Anti Power Theft Squad (APTS), Palakkad
unit of KSEB Ltd. along with the officials of Electrical Section
conducted a surprise inspection at the premises of the 3 rd
respondent on 08.06.2017. Site mahazar was prepared by the
WP(C) NO. 8072 OF 2020
Assistant Engineer and provisional assessment of Rs. 9,33,276/-
was issued to the 3rd respondent on 12.06.2017. The allegation
against the 3rd respondent that, he had connected unauthorised
additional load of 89.783 KW over and above the sanctioned
load of 77.875 KW. The provisional assessment was confirmed
by the final assessment order dated 10.07.2017.
4. The 3rd respondent approached this Court by filing W.P.(C)
No. 25716 of 2017 (L). However, this Court vide Judgment and
Order dated 03.08.2017 directed the 3rd respondent to file
appeal before the appellate authority under the provisions of
Section 127 of the Electricity Act. The 3 rd respondent was
directed to remit only 50% of the fixed charges of the
assessment of the total assessed amount.
5. In view of the liberty granted by this Court, the 3 rd
respondent filed appeal No. 219/2017 before the Electricity
Appellate Authority. The Electricity Appellate Authority
considering the provisions of Section 126 of the Electricity Act
and Regulation 153 (15) of Kerala Electricity Supply Code 2014
as well as Judgment of this Court in Executive Engineer &
Another v. M/s. Sri Seetaram Rice Mill [2011 STPL (Web) 942
SC] held that the assessment in cases where usage of electricity
WP(C) NO. 8072 OF 2020
was deducted to be completed twice the amount for the fixed
charges only. The appellate authority while coming to the said
conclusion has made the following observations;
"The above judgment made it clear
that the assessment under Section 126 of
the 2003 Act for the UAL detected shall
be made at twice the rate under
applicable tariff for the fixed charges only
and not for the energy charges unless
regularisation of such UAL or enhancement
of contract demand necessitates
upgradation of the existing distribution
system or enhancement of voltage level of
supply. In the case at hand, as the UAL
of 89.783 KW has been found used for the
functioning of the same industrial unit,
the tariff applicable for the assessment is
LT IV A industrial. The appellant had
connected UAL of 89.783 KW over and
above the sanctioned load, resulting in a
total load of 167.658 KW, with the
maximum demand recorded in the
premises 91.6 KVA. As per Regulation 11
(1) of the Kerala Electricity Supply Code
2014, the maximum contract demand
permissible for low tension consumer who
avails power under demand based
metering shall be 100 KVA, irrespective of
his connected load. Hence it is observed
that regularisation of the UAL with a
WP(C) NO. 8072 OF 2020
maximum contract demand of 91.6 KVA,
in the premises of LT consumer number
7719 does not necessitate any
enhancement of voltage level of supply.
But the respondent argued that to
regularise the unauthorised additional load
the existing 100 KVA transformer has to
be enhanced to 160 KVA and hence an
upgradation of the distribution system is
required. The respondent argued that the
actual maximum demand in the premises
is not recorded in the meter as it is of 30
minutes time integration type and the load
of shorter duration do escape from
recording and hence the recorded
maximum demand of 91.6 KVA was not
the actual demand occurred in the
premises. The respondent further argued
that the failure of the 100 KVA
transformer, exclusively feeding this
premises, on 05.06.2017 and also the
frequent blowing off the drop out fuses of
the transformer were due to that excess
loading. But it is observed that the
maximum demand has been defined vide
Regulation 2(56) of Supply Code 2014 as
"maximum demand" means the highest
average load measured in KVA or KW at
the point of supply of a consumer during
a consecutive period of thirty minutes or
such other consecutive period as specified
by the Commission; during the billing
WP(C) NO. 8072 OF 2020
cycle.' In this circumstances the
considered view of the Authority is that
there is no relenence in the argument of
the respondent that the maximum demand
recorded in the meter with 30 minutes
integration was not the actual maximum
demand. The respondent has failed to
establish that the 100 KVA transformer
(exclusively feeding the premises) has to
be enhanced to 160 KVA for regularising
the UAL with a maximum contract
demand of 91.6 KVA. Hence the
neccessity for any upgradation of the
existing distribution system to regularise
the UAL could not been proved by the
respondent. In this circumstance, the
Authority is of the view that the
assessment under Section 126 of 2003 Act
for the UAL detected shall be made at
twice the rate under LT IV A, industrial
tariff for the fixed charges only and not
for the energy charges. The assessment
may be revised accordingly. Since the
period of unauthorised use has not been
ascertained, the same shall be limited to
twelve months immediately preceding the
date of inspection by virtue of Section 126
(5) of the 2003 Act."
6. The appellate authority set aside the final assessment and
directed the assessing authority to revise the assessment within
WP(C) NO. 8072 OF 2020
a period of fifteen days at twice the rate under LT IV A tariff for
the fixed charges only on account of the unauthorised
additional load (UAL) of 89.783 KW, for a period of twelve
months prior to the date of inspection.
7. As can be seen from the extracted part of the Order of the
appellate authority, the appellate authority placed reliance on
the Judgment of this Court in W.P.(C) No. 6993 of 2013.
8. The learned Counsel for the petitioner Board has
submitted that the said Judgment has been overruled by the
Supreme Court in the case of Kerala Electricity Board vs.
Thomas Joseph alias Thomas M. J. and others [2022 SCC
Online 1737].
9. The Supreme Court after considering the provisions of
Section 126 as well as 45(3)(a) of the Electricity Act has
categorically held that, the charges for electricity certified by a
distribution lincensee include fixed charges in addition to
charges for the equal electricity supplied and consumed. Tariff
includes both fixed charges and energy charges and once the
assessing authority arrives at the conclusion that unauthorised
use of electricity has taken place, he is obliged to make
assessment charge equal to twice the tariff applicable which
WP(C) NO. 8072 OF 2020
includes dues payable towards the energy charges also.
Paragraph 88 of the said Judgment which is relevant for the
purposes of the present writ petition is extracted hereunder;
"88. A plain reading of Section 45(3)(a) of the
Act 2003 referred to above would indicate
that the charges for electricity certified by a
distribution licensee include the fixed charges,
in addition to the charges for the actual
electricity supplied and consumed. In such
circumstances, it can be said that the tariff
includes both, fixed charges and energy
charges and once the assessing officer arrives
at the conclusion that unauthorised use of
electricity has taken place, he is obliged to
make the assessment charge equal to twice
the tariff applicable, which includes the dues
payable towards the energy charges also."
10. Sub-section (5) of Section 126 of the Electricity Act
empowers the assessing authority to assess the misuse of
electricity twice the rate applicable for connection of the
consumer. It further provides that if the time period for misuse
is not determinable, then the said charges will be confined to
twelve months preceding the date of inspection. Otherwise it
would be leviable for the entire period of misuse. The plain
reading of Sub-section (5) of Section 126 read with Section 45(3)
(a) of the Electricity Act would make it clear that, for misuse of
the electricity, all the charges are to be assessed at twice which
WP(C) NO. 8072 OF 2020
would include the energy charge and fixed charge as held by the
Supreme Court.
11. In view thereof, the impugned Order in Exhibit P-7 passed
by the appellate authority is unsustainable and same is set
aside. As a result thereof, the final assessment order in Exhibit
P-4 would stand survived.
In the above view, the present writ petition is allowed.
Sd/-
DINESH KUMAR SINGH
JUDGE
Svn
WP(C) NO. 8072 OF 2020
APPENDIX OF WP(C) 8072/2020
PETITIONER'S EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE MAHAZAR DATED
08/06/2017.
EXHIBIT P2 THE TRUE COPY OF THE PROVISIONAL BILL
ISSUED DATED 08/06/2017.
EXHIBIT P3 THE TRUE COPY OF THE OBJECTION FILED BY
THE 3RD RESPONDENT DATED 19/06/2017.
EXHIBIT P4 THE TRUE COPY OF THE FINAL ASSESSMENT
ORDER ISSUED BY THE 2ND RESPONDENT
ASSESSING OFFICER DATED 20/07/2017.
EXHIBIT P5 THE TRUE COPY OF THE APPEAL MEMORANDUM
SUBMITTED BY THE 3RD RESPONDENT BEFORE
THE KERALA STATE ELECTRICITY APPELLATE
AUTHORITY.
EXHIBIT P6 THE TRUE COPY OF THE REPORT / STATEMENT
FILED BY THE ASSESSING OFFICER IN THE
ABOVE APPEAL.
EXHIBIT P7 THE TRUE COPY OF THE ORDER OF THE KERALA
STATE ELECTRICITY APPELLATE AUTHORITY.
