P X JOSEPH Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) PETITIONER , who is the owner of the building by name "Anjali Complex" has, filed this writ petition challenging Ext.P3 bill issued on 25.09.2009 demanding a sum of Rs.2,37,192/ - (Two lakhs Thirty Seven Thousand One hundred and Ninety Two only) praying for further directions to the respondent Electricity Board not to charge the penal rate pursuant to Ext.P3 bill.

(2.) ACCORDING to the petitioner, the building owned by him was leased out to BSNL as per Ext.P1 and thereafter to one Jerry Varghese as per Ext.P1(a). From the officials of BSNL, petitioner came to know that on 19 -10 -2005, a surprise inspection was conducted in this building with Consumer No. 7709, by the Assistant Executive Engineer and his team under the 1st respondent -Kerala State Electricty Board (KSEB for short) and after inspecting the meter and connected load, Ext.P2 mahazar. was prepared . Thereafter, without any further action on it, Ext.P3 demand notice cum disconnection notice dated 25 -9 -2009 was issued to petitioner demanding payment of Rs. 237192/ - (two lakhs thirty seven thousand and ninety two only) before 12 -10 -2009 and threatening disconnection, in case the amount was not paid within the notice period. The said notice was issued under Section 24(1) of the Indian Electricity Act demanding charges for additional load 11 KW for the period from July 2005 to May 2009 along with penal charges. According to the petitioner, no notice regarding any provisional assessment was issued to him and he was not giving any intimation regarding any assessment in respect of the building with the aforesaid consumer number. Immediately on receipt of the demand notice, petitioner submitted Ext.P4 objection before the Assistant Engineer on 05.10.2009 pointing out that he was not liable to pay any amount as demanded in the notice and requesting to cancel the same. It was pointed out therein that the mahazar was seen prepared as early as on 19.10.2005. But, no provisional assessment was made in accordance with Regulation 27A of the Kerala Electricity Supply Code, 2005 (hereinafter referred to as 'the Code') which mandates that a provisional assessment shall be made in respect of the electricity charges payable, if Assessing Officer, on an inspection of any premises, comes to the conclusion that such person is indulging in unauthorised use of electricity. He pointed out that as on 19.10.2005, when the inspection was conducted and Ext P2 site mahazar was prepared, the building was in the occupation of BSNL. He also pointed out that the procedural requirement to issue an order order of provisional assessment and to serve it on the person in occupation or in charge of the premises, enabling him to submit his objections, was not observed. Petitioner pointed out that he could not avail of the opportunity to challenge the assessment by filing an appeal provided under Regulation 27(2) of the Code, since final assessment was not made/orders issued in accordance with the provisions. Ext.P5 series of bills show that the electricity charges payable for the premises were under LT VII (A) tariff and the average charges being demanded for the premises bimonthly was about Rs.25,000/ - during 2008 -2009, i.e before inspection.

(3.) AS Ext P4 objection did not yield any result, petitioner has approached this court challenging the demand notice, alleging that the demand for charges after expiry of 4 years after the inspection and without issuing any order of provisional assessment, and without giving an opportunity to submit objections are in gross violation of Regulation 18(8) and 27A of the Code. According to Regulation 18(8), KSEB cannot recover any arrears after a period of 2 years from the date on which it fell due. The impugned action in 2009 is for recovery of charges for the period from 5/05 onwards, based on inspection held in 2005. Under Regulation 27A, the assessing officer, in case on inspection, it is found that the consumer is indulged in unauthorised use of electricity, has to issue an order of provisional assessment. Final assessment can be made only after serving a copy of the same on the occupant or person in charge of the premises and after affording him an opportunity to furnish his explanation on it. As there was no order of assessment made/issued or communicated petitioner lost his remedy of appeal also provided under Regulation 27(2). It is also submitted that there was no unauthorised load as alleged and that even as per Ext P2 mahazar, there were several items which remained unconnected.