LUQMAN ALI MUHAMMED Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) W.P. (C) No. 30111/2012 is filed challenging finalisation of penalty imposed under S. 126 of the Electricity Act, 2003, which is confirmed by the appellate authority in Ext. P15 order. An inspection was conducted by the Anti Power Theft Squad (APTS) at the premises where the electric connection was provided under LT VIIA tariff for construction purposes. On detecting that the petitioner had unauthorisedly extended the connection to 4 residential buildings (Villas) constructed nearby, where there was residential occupation, penalty as contemplated under S. 126 was imposed. After serving a provisional order of assessment and after considering the objections submitted by the petitioner the assessment of penalty was finalised after affording opportunity of personal hearing to the petitioner. Exhibit P11 is the final order of assessment issued. Aggrieved by Ext. P11 the petitioner had approached this court in a Writ Petition. Through Ext. P12 judgment this court relegated the petitioner to seek the remedy of statutory appeal, after depositing necessary amount stipulated as pre-condition. The petitioner challenged Ext. P12 judgment in Writ Appeal before the Division Bench. In Ext. P13 judgment this court directed consideration of appeal if any filed, subject to condition of the petitioner remitting a sum of Rs. 2.5 lakhs instead of 50% of the amount assessed. It was made clear that the K.S.E.B. can disconnect supply to all the Villas. It was also observed that, if people are already residing in the Villas, the Board should retain independent connections on compliance with all formalities, so that they are not put to difficulty. The Division Bench further directed that, if the petitioner remits Rs. 2.5 lakhs as directed, recovery of the balance will remain stayed for 3 months and thereafter the recovery will be based on orders which will be passed in appeal. Pursuant to the directions contained in Ext. P13 judgment, the petitioner filed Ext. P14 appeal before the 2nd respondent. Exhibit P15 is the order passed by the appellate authority. The quantum of penalty was reduced limiting the period of assessment to 80 days preceding the date of inspection, instead of 365 days originally assessed. It is not being satisfied with the order of the appellate authority, this Writ Petition is filed.

(2.) In W.P. (C) No. 30564/2012 the petitioner is challenging Ext. P17 order issued by the authorised officer imposing penalty for the further periods after the assessment, from 11.7.2012 to 3.12.2012. Penalty was imposed on the premise that, eventhough the petitioner was requested to remove the unauthorised extension with proper intimation to the 2nd respondent, he had failed to comply with such request. It is further pointed out that the 2nd respondent was unable to disconnect the unauthorised extension in view of stay granted in Ext. P13 judgment by the Division Bench.

(3.) The challenge against Ext. P15 appellate order is mainly on two grounds. It is contended that the imposition of penalty at the rates applicable to LTVIII tariff, is not sustainable. The connection in question was provided under LTVIIA tariff. The unauthorised extension was detected to 4 residential buildings, for domestic usage. Hence the tariff applicable for the purpose for which energy was allegedly misused is a tariff for which lesser rate is applicable. Hence no penalty can be imposed, is the contention. Petitioner relies on Regulation 59 of the K.S.E.B. Terms and Conditions of Supply 2005 in support of the above contention. But provisions contained in S. 126 of the Electricity Act, 2003 authorises assessment of penalty in case the authorised Officer arrives at a conclusion that the consumer or any other person had indulged in unauthorised use of electricity. Unauthorised use of electricity is defined under S. 126(6)(b) of the Act. The Hon'ble Supreme Court in a recent decision in Executive Engineer, Southern Electricity Supply Company of Orissa Ltd. & Anr. v. Sri. Seetaram Rice Mill, 2012 2 SCC 108 held that any usage of electricity which is not authorised under the Act, Rules or Regulations will amount to unauthorised use, for which a penalization is sustainable. Therefore the contention that the usage was for a purpose for which lesser tariff is applicable, cannot be taken as a ground.