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:
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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
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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
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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
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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
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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
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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
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
