P.M.VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a consumer under the 2nd respondent. The sanctioned load of electrical connection in the name of the petitioner was 15 KW. On 5.8.2000, the regional unit of Anti Power Theft Squad ('APTS' for short), Ernakulam inspected the premises of the petitioner and found that the petitioner was using 30 KW of connected load without any permission from the Kerala State Electricity Board (hereinafter referred to as 'Board' for short). On the basis of this detection, Ext.P1 bill was issued on 11.08.2000, demanding a sum of Rs.68,507/- re-assessing the petitioner for the additional load of 15KW, under Regulation 42 (d) of the Conditions of Supply of Electrical Energy, 1990 ('Conditions' for short). Producing Ext.P2 bill for the month of July, 2000 the petitioner submitted that the normal bill amount used to be a sum of Rs.675/-. As against Ext.P1, the petitioner submitted an appeal and immediately thereupon approached this Court in O.P.25203 of 2003 which was disposed of by Ext.P3 judgment dated 30.08.2000 directing disposal of the appeal and also directing the Board to receive payment of the normal bill amount on condition that the petitioner remits 1/3rd of the amount assessed in Ext.P1. The petitioner submits that he had submitted an application for regularisation of the excess load on 11.10.2000 and he had also removed 6 split ACs of 1.5 ton capacity in the second week of August, 2000. But the respondent/Board on receipt of the application for regularisation required him to dismantle the split AC and window AC. The petitioner informed them that since he wanted to install generators in the premises, he was unable to dismantle or remove those units. Therefore, it is his case that the Board officials refused to treat the excess load as disconnected and issued the subsequent bills imposing penal rates. The petitioner again approached this Court filing O.P.No.27249/2000 challenging the bill for August, 2000. That O.P was disposed of on 25.09.2000 directing the respondents to dispose of the appeal submitted by the petitioner, accepting the admitted amount towards the bill and staying realisation of the bill amount till then. The bill issued for the month of September, 2000 was challenged in O.P No.30032/2000. The petitioner filed O.P.No.33285/2000 and O.P.No.103/2001. Those Original Petitions were also disposed of directing disposal of appeals filed by the petitioner, staying the realisation of bill amounts on conditions fixed. It is stated that in O.P No.103 of 2001, which was in respect of the bill for November, 2000, the realisation of the entire amount was stayed. The petitioner further submits that the Deputy Chief Electrical Inspector accorded temporary sanction for installation of generator set, as per his order dt.7.5.2001. The appeal was disposed of by Ext.P6 order dt.30.05.2002. It was at that stage that, the petitioner filed this Original Petition, challenging Ext.P6 order rejecting the appeal. The petitioner filed I.A. No.12017 of 2015 seeking amendment of the original petition and got the same amended incorporating additional facts, grounds and prayer with respect to challenge against Regulation 42(d) of the Conditions. It is his contention in the amended O.P that, Regulation 42(d) is beyond the scope of the provisions contained in the Indian Electricity Act, 1910 inasmuch as unguided and unlimited power have been given to the Board and the same is arbitrary. It is contended that under this Regulation, connected load without prior permission of the Board is treated as misuse of energy by fiction, even if the customer pays for the actual energy consumed and this misuse of energy is billed at 3 times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse. It is further stated that the penalty imposed under the regulations is not provided for under Section 79(j) of the Electricity (Supply) Act, 1948, under which the Board has framed the Regulations; but Section 79(j) of the 1948 Act enables the Board only to make regulations not inconsistent with the Act and the Rules made thereunder to provide for principles governing the supply of electricity by the Board to persons other than licensees under Section 49 and the preamble of the Regulations show that these Regulations are issued for prescribing fees/charges for various items and forms. Referring to this preamble to the regulations, it is contended that the Regulations cannot be intended to define offences or to impose penalty of any description and the Board does not have any such power to incorporate any provisions for imposing penalty or fine under Section 79(j) of the Electricity Supply Act. Therefore, Regulation 42(d) which provides for imposing a penalty/punishment on a consumer for misuse of energy by charging a higher tariff which is twice that of normal charge in the previous six months and hence Regulation 42(d) is issued without any authority. Sections 39 to 56 of the Indian Electricity Act, 1910 provides for the criminal offences and the punishments thereof. It also provides under Section 44(d) for the punishment for improper use of energy of a licensee as well as for connection of meters to any other meters or apparatus, unauthorized reconnection etc. Pointing out the offences as well as the punishment provided for it under Section 44, it is contended that imposing a higher tariff is not a punishment provided for improper use of electricity; at the same time, what is provided for is only a prosecution for imposing punishment for misuse or improper use of electrical energy before a court of law which can always be on adjudication by the criminal court. According to the petitioner, Regulation 42(d) defines a new offence and prescribes a penalty without any authority.

(2.) The petitioner got another contention that the additional load was detected in July, 2000 at the time when the shop was renovated, when he was about to inform the Board regarding the additional load immediately on completion of the renovation; in support of that claim he had produced several materials before the appellate authority; he had already disconnected the additional load and removed the 6 split ACs of 1.510 capacity and one unit AC of the same capacity and applied for regularization of excess load. But his request was not acceded to, insisting for dismantling/removal of those equipments. The petitioner further points out that the electrical inspectorate accorded sanction subsequently, when it permitted installation of generator; the connected load thereupon came down to 13.5 KW.

(3.) The Board did not file any additional counter affidavit against the amended O.P. In the counter affidavit filed before amendment they explained the irregularities detected in the inspection by APTS; bills were issued in terms of regulation 42 (d) since excess load was found connected without permission; appeal was disposed of in accordance with law after considering all the relevant contentions; petitioner had never applied for additional power prior to the inspection by the APTS on 5.8.2000; even though he had kept the equipment disconnected, he had not dismantled or removed it and he had every opportunity to reconnect those equipments to the Board supply system at any time; therefore, the Board had to consider the disconnected load also as unauthorized excess load; even though the petitioner had obtained sanction from the Deputy Chief Electrical Inspector for installation of generator set, he did not obtain sanction from the Board and therefore penal rates were being charged in his monthly bills; the petitioner did not even submit an application in the prescribed form with declaration for obtaining sanction to install generator as provided in Section 44 of the Electricity Supply Act, even after intimation from the Board; as per the orders in force, the Board give sanction for installing generator set only for standing operation during the power failure; but the request of the petitioner was for installing generator set for simultaneous operation; the petitioner had to obtain sanction for power allocation for the entire connected load, for which he never applied; subsequent to the judgment in O.P.No.103 of 2011, the 3rd respondent had inspected the premises when it was found that the AC units were not dismantled from the premises; the then Deputy Chief Engineer- the appellate authority had passed orders on 31.5.2002, after hearing the parties and considering all the evidence and materials before him; the 3rd respondent had inspected the premises on 19.08.2002 in which the connected load was found to be 8.692 kw which was less than the sanctioned load and therefore penalization was stopped from 8/2002 onwards; and that the petitioner had not intimated the Board about the dismantling of the AC units.