Pursuant to an inspection conducted at the premises of the petitioner, where an electric connection is provided for running a Hotel, Ext.P1 provisional assessment of penalty under Section 126 was issued, based on the allegation that unauthorised additional load was detected. The petitioner filed objections against the provisional assessment, which was directed to be considered by the Assessing Officer, through a judgment of this court. Thereafter Ext.P3 final order was issued, which was again challenged before this court. In Ext.P4 judgment this court found that the Assessing Officer has not applied his mind with respect to the objections raised. Hence the final order of assessment was quashed and the Assessing Officer was again directed to pass fresh orders. Accordingly, Ext.P5 proceedings was issued finalising the assessment accompanied with Ext.P6 consequential bill. Exts.P6 and P7 were challenged in an appeal filed before the 3rd respondent, the appellate authority under Section 127 of Electricity Act, 2003. In Ext.P9 order the appellate authority had declined interference, but modified the quantum of unauthorised additional load from 4725 watts to 4420 watts. Ext.P10 is the consequential bill issued. The 2nd respondent had issued a further bill as per Ext.P11 imposing penal assessment for the subsequent period also. Exts.P9, P10 and P11 are under challenge in this writ petition. 2. With respect to detection of unauthorised additional load, there is no much dispute. The only contention is that the application for additional power allocation was pending without disposal before the 2nd respondent. But at any rate, the same will not authorise the petitioner to install additional load to the supply without permission. Therefore the detection of unauthorised usage of electricity was true and correct, as envisaged under Section 126(6)(b).
3. It is noticed that while finalising the assessment electricity duty was also imposed on the penalty assessed.
It remains settled by this time that no duty can be levied on the amount of penalty. Therefore demand for payment of electricity duty to the tune of `7,000/- contained in Ext.P10 is not sustainable.
4. Learned counsel for the petitioner pointed out that the 2nd respondent has not given credit to the 50% payments already made at the time of filing of the appeal. Further it is pointed out that an amount of `15,000/- was paid thereafter consequent to an interim order issued by this court in the present writ petition, on 11.03.2009. Needless to observe that, the petitioner is entitled to get credit of the payments already made and will be liable only for payment of the balance amount due.
5. Challenge against Ext.P11 is justified. Merely because once an unauthorised additional load is detected, continued imposition of penalty is not automatic. Eventhough Regulation 51(2) of the KSEB Terms and Conditions of Supply provides that the consumer will be liable for assessment of penalty until the removal of unauthorised additional load, it will not override provisions contained in Section 126. Section 126 prescribes procedure for assessment of penalty. Eventhough the respondents had a case that unauthorised additional load detected had continued under usage of the consumer, they have to resort to procedure contemplated under Section 126(2)&(3) for imposing any further penalty. Hence Ext.P11 is unsustainable.
6. Under the above mentioned circumstances, this writ petition is disposed of by directing the 2nd respondent to modify Ext.P10 Bill to the extent of reducing the amount of `7,000/- demanded as Electricity Duty and also to the extent of giving credit to payments already made by the petitioner. Revised demand shall be issued by the 2nd respondent in this regard within a period of 2 weeks from the date of receipt of a copy of this judgment, granting time for payment of the balance amount if any due, for a period of one month thereafter.
7. Ext.P11 is hereby quashed. It is made clear that the 2nd respondent will be at liberty to make fresh assessment following the procedure contemplated under Section 126, if he has got a case that there occurred continued unauthorised usage for any period after the imposition of Ext.P1 penalty, subject to sustainability of such assessment under the relevant provisions of the statute.
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C.K. ABDUL REHIM, JUDGE Pn