AUTUMN TREES Vs. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM AND OTHERS
LAWS(KER)-2017-6-320
HIGH COURT OF KERALA
Decided on June 16,2017

Autumn Trees Appellant
VERSUS
Kerala State Electricity Board, Represented By Its Secretary, Vydyuthi Bhavanam, Pattom, Thiruvananthapuram And Others Respondents

JUDGEMENT

A.K.JAYASANKARAN NAMBIAR,J. - (1.) The petitioner has approached this Court aggrieved by Ext.P11 order of the appellate authority affirming Ext.P4 final assessment under Section 126 of the Electricity Act. Ext.P12 demand notice which is raised as a consequence of Ext.P11 appellate order is also impugned in the writ petition. The learned counsel brings to my notice the judgment of the Division Bench of this Court in Sulabha Marketing (P) Ltd. v. Kerala State Electricity Board and Others [I.L.R 2017 (2) Kerala 609] at paragraph 31 of which, this Court found as follows: "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 unauthroised use of electricity in the premises of a consumer is not a mandatory requirement for initiating assessment proceedings under section 126(1) of the Act. (ii) The expression 'unauthorised use of electricity' under Section 126 of the Act deals with cases of unauthorised use even in the absence of intention. Hence, the intention of the consumer is the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 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 section 126 of the Act. (iv) The term 'tariff' in Section 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 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 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 by any artificial means or through a tampered meter, assessment under Section 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 Section 126 of the Act, the assessing officer is empowered to assess unauthorised use of electricity at the rate prescribed in section 126(6) and for the period specified in Section 126(5), as amended by the Electricity (Amendment) Act, 2007 for both fixed charges and energy 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 Section 126 of the Act for the period specified in Section 126(5) and at the rate specified in Section 126(6)of the Act. As such, Regulation 51(1) of the Conditions of Supply, 2005 is neither ultra vires the provisions of Section 126 of the Act nor unenforceable. (ix) What is contemplated under Board Order dated 7.2.2008 is only assessment of unauthorised use of electricity in terms of Section 126 of the Act, as amended by the Electricity (Amendment) Act, 2007 for the period specified in Section 126 (5) and at the rate specified in Section 126 (5) of the Act. As such, the said Board Order is neither ultra vires the provisions of Section 126 of the Act nor unenforceable." The case of the petitioner in the writ petition would be covered by the findings of the Court at Clause (vi) referred above. Accordingly, and following the judgment referred above, I allow the writ petition by quashing Exts.P11 and P12 to the extent it affirms Ext.P4 final assessment, and direct the 3rd respondent to recompute the demand against the petitioner on the basis of the findings in the judgment of the Division Bench noted above.;


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