The petitioner has approached this Court with the following prayers:
“(a) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exts.P11,P13,P14 and P15;
(b) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to make fresh assessment in respect of electric connections of the petitioner covered by Ext.P1, strictly in terms of Section 126 of the Electricity Act, without prejudice to the right of the petitioner to challenge the same by way of statutory alternative remedy;
(c) Grant such other or further relief as this Hon'ble Court deems fit to grant in the particular facts and circumstances of the case, including cost of these proceedings.”
2. When the matter came up for consideration before this Court on 09.09.2008, the following interim order was passed:
“The Standing Counsel takes notice for the respondents. There will be an interim order as prayed for, for a period of four weeks on condition that the petitioner deposits an amount of Rs.3 lakhs. If such deposit is made, the supply shall be re- connected, if already disconnected.”
3. The basic question to be considered is whether the extension of connection taken by the petitioner will attract any unauthorised use of power, so as to be mulcted with penalty, that too, under LT (viii) category, in view of the nature of connection provided to the petitioner.
4. The case of the petitioner is that, he is one of the co- owners of a commercial building and separate connections have been provided by the Electricity Board as Consumer Nos.11938, 10745, 11935, 11934, 11375, 10973, 11939 and 11275. There was a surprise inspection by the A.P.T.S. Team on 29.07.2008 and 30.07.2008, as covered by Exts.P1 to P8 Mahazars, followed by penal bills issued to the parties including the petitioner. The petitioner sought to challenge the correctness and sustainability of the said bills by filing WP(C) No.24604 of 2008. It is pointed out that, nowhere in Exts.P1 to P8 Mahazar, has it been stated that there was any tampering with the meter or that the meter was faulty in any manner. The course and proceedings pursued by the Board were challenged, stating that it was contrary to the mandatory requirements of the relevant provisions of law, having not issued any provisional order, granting an opportunity to file objection. This Court, after considering the rival contentions, observed that the bills issued to the petitioner might be taken as provisional bills, with liberty to the petitioner to file objection and to have the matter finalised accordingly. The writ petition was disposed of as per Ext.P9 judgment dated 19.08.2008. Pursuant to the said verdict, the petitioner filed Ext.P10 objections, categorically asserting that, it was not a case of unauthorised use of electricity, also raising a challenge with regard to the classification sought to be pursued by the Board, treating the same as LT(viii) connection. The power supply given to the petitioner was under the category LT(vii). It was also pointed out that, there could not have been any penalty on 'daily basis', in view of the scheme of the statute. But without any regard to the pleadings and prayers, the matter was finalised by the 2nd respondent by passing Ext.P11 order, fixing a total liability payable by the consumers as Rs.12.71 lakhs. This was followed by Ext.P13 notice and Ext.P14/P15 bills. These are under challenge in this writ petition.
5. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the Board.
6. The finding made by the 2nd respondent as per Ext.P11 is to the following effect:
“Sri. E.K. Kunhammed Kutty argued in the personal hearing that these are not unauthorized Extensions and it is unauthorized additional load since these connections are within the same building. It was clarified that unauthorized additional load is the additional load connected within the premises of the consumer without the permission of K.S.E.B. In all the above cases, connection is extended out of the defined premises of connection, and hence can be treated as unauthorized extension of power. Premises means the area in the complex, where Electricity supply is taken. In the above complex, ie. Inter City Arcade, there are more than 85 defined premises and separate connection is taken for about 80 premises. So the supply taken out from the defined premises is unauthorized extension, and not unauthorized additional load. Also in the argument, Sri. E.K. Kunhammed Kutty stated that common supply is common for the building and can be extended any part of the building. It is clarified that common supply is meant for defined common area in the building like common area lighting, lift, water pump, fire pump, common parking area etc. It is clarified that, if for common purpose, there is no need for availing more than 80 connections in the same building. So the supply given for the common area extended to any other defined premises defined for any other purpose in the same building can be treated as unauthorized extension of power, not as unauthorized additional load. Hence the billing is made for unauthorized extension. Hence there is no change of amount in final bill. The due date and the disconnection of date are as shown in final bill.”
7. The learned counsel for the petitioner submits that, the said finding is per se wrong and arbitrary in all respects in view of the law declared by this Court as per the decision reported in 2007 (3) KLT 388 (J.D.T. Islam Orphanage Committee V.
Assistant Engineer, K.S.E.B.). The operative portion of the said verdict reads as follows:
“4. There is no case for the Board that the energy consumed in the premises where the extension is taken is not measured. That energy consumed at the premises where the alleged unauthorised extension is taken from the main premises is measured in the meter at the main premises. Under S.26 of the Indian Electricity Act, 1910, energy shall be billed only on proper measurement by a correct meter. There is no dispute that the meter is faulty. Therefore, the energy consumed through the meter having been billed and the payment having been made, there can be no imposition of penal rates at LT VIII Tariff on daily basis for the alleged unauthorised extension, the same being not permitted under the Conditions of Supply of Electrical Energy. Therefore, Ext.P12 in the matter of penal billing for the temporary extension under LT VIII Tariff is quashed. Liability is only for the penal rates at three times the fixed charges alone under LT VI tariff for six months, during the relevant period.”
It is brought to the notice of this Court that, though an appeal was preferred against the said verdict by way of W.A. No.607 of 2008, the position stands confirmed as per the decision rendered in the appeal, which is reported in 2014 (1) KHC 498
(Viswanathan R.V. Vs. Kerala State Electricity Board and
Others).
8. In the said circumstances, this Court finds that the petitioner is entitled to succeed. Accordingly, the impugned orders are set aside. The concerned respondent is directed to make a fresh assessment in respect of the connection provided to the petitioner covered by Ext.P1, strictly in terms of Section 126 of the Electricity Act and with regard to the mandate of Regularisation No.50 of the KSEB Terms and Conditions of Supply, 2005. This shall be done after giving an opportunity of hearing to the petitioner, at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment.
The writ petition is disposed of accordingly.
P.R. RAMACHANDRA MENON, JUDGE sp