Challenge in this writ petition is against Exts.P13, P15 to P15 (e), P16, P18 to 18 (b), P19 and P19 (a) bills to the extent it demanded penalty on fixed charges and proportionate energy charges on the allegation that unauthorised additional load was continuing in the electric connection installed.
2. The petitioner is a Co-operative Bank. The building on which the electric connection is provided, was having two floors initially. The petitioner constructed 2 more floors on the building and completed the wiring, after getting necessary permissions. But no electric connection was given to the additional area. On an inspection conducted by the Anti Power Theft Squad (APTS) on 17-12-2007, unauthorised extension was detected to the area of the building to which the electric connection was not provided, in a manner bypassing the energy meter. On the basis of detection of the unauthorised usage penalty was imposed on the petitioner, which was challenged in appeal before the 2nd respondent. In Ext.P9 order the appeal was disposed of by allowing reduction in the quantum of penalty. According to the petitioner the penalty imposed as per the revised demand was already remitted. In the impugned bills issued for various months after the inspection, the respondents demanded penalty on fixed charges alleging continued usage of the unauthorised additional load. In some of the bills the penalty was also imposed on proportionate consumption of energy charges with respect to the portion of unauthorised additional load. There is evidence to the effect that, at each stage the petitioner submitted objections against the levy of such continued penalty. But repeated demands were seen issued without considering those objections. Therefore the petitioner is challenging the continued imposition of penalty demanded through the bills, which are impugned in this writ petition.
3. Contention of the petitioner is that, after the inspection conducted by the APTS, the power supply was restored in the premises only after removing the unauthorised additional load. In support of such a contention the petitioner relies on Ext.P11 order issued by the 2nd respondent. From Ext.P11 it is evident that after the inspection on 17-12-2007 the petitioner approached the 2nd respondent with an application dated 18-12-2007. Exhibit P11 was issued on 19-12-2007 wherein the 2nd respondent had accorded sanction to settle the payment of the amount of penalty in two equal monthly installments. Sanction was also accorded to re-effect service on remittance of first installment on satisfying the condition that all unauthorised connected loads are disconnected. Apart from that, the petitioner points out that the 3rd respondent had conceded about the removal of the unauthorised additional load when the matter was considered by the 2nd respondent in the appeal filed against imposition of the original penalty. Referring to Ext.P9 appellate order it is contended that, on 25-04-2008 when hearing of the appeal was conducted, the 3rd respondent conceded that, “after removing the additional load subsequent to inspection, the average monthly consumption was found reduced to below 6000 units which was 7700 units earlier.” The above admission as well as the fact that the supply was reconnected on the basis of Ext.P11 order of the 2nd respondent after removing the unauthorised load, would clearly indicate that there was no continued usage of unauthorised additional load, warranting imposition of continued penalty, is the contention. Hence it is argued that the portion of penalty demanded through the impugned bills is totally unsustainable.
4. In the counter affidavit filed on behalf of the respondents it is mentioned that, the 2nd respondent had directed the removal of the unauthorised additional load. But it is denied that the 3rd respondent had received any letter as that of Ext.P12 reporting about removal of the unauthorised additional load. It is contended that if the petitioner would have submitted such facts, the authorities ought to have conducted timely inspection in the premises to verify the authenticity with respect to the claim of removal. According to the respondents, since the unauthorised usage of additional load continued, the imposition of penalty as per Regulation 51 (2) of the KSEB Terms and Conditions of Supply was regular and proper. Hence it is contended that the impugned demand is legal and in order.
5. While analysing the factual aspects, there is ample evidence to show that the unauthorised load was removed after the inspection. Such a conclusion is based on the fact that the re-connection was permitted only subject to compliance of such a condition. It is further noticed that, there was a clear admission from the side of the 3rd respondent before the appellate authority regarding the removal of the unauthorised load. Further, this court takes note of the fact that, the respondents were not supposed to permit continue usage of additional load even after detection of such irregularity. Going by Section 135 (1) (e) any dishonest usage of electricity for the purpose other than for which the usage was authorised will amount to theft of energy. When there was a specific direction to remove the unauthorised usage and if the consumer fails to comply with that, definitely it will become a dishonest usage for the purpose other than for which it was authorised. If the respondents have permitted such usage to continue with their knowledge, it will definitely amount to a dereliction of the duty cast upon the officials concerned. However, in the case at hand there is ample evidence to show that such usage was not at all continuing. Therefore the continued penalty imposed through the impugned bills in a quite mechanical manner, cannot be sustained.
6. Another aspect which is pertinent to be dealt with is regarding the procedure adopted with respect to the imposition of penalty. The respondents rely on Regulation 51 (2) of the KSEB Terms and Conditions of Supply, 2005 inorder to content that, penalty for unauthorised additional load can be levied till such unauthorised additional load is removed as per the Rule. But the respondents have derived the power for imposition of penalty on detection of the unauthorised usage, only from Section 126 of the Electricity Act, 2003. It enables imposition of two times of the electricity charges payable by the consumer, on detection of unauthorised usage and if the authorised officer is convinced about such unauthorised usage. Merely because Regulation 51 (2) enables continued imposition of penalty for unauthorised additional load till it is removed or regularised, it does not permit the authorities of the Board to assess the penalty without following the procedure contemplated under Section 126 (2) & (3). There cannot be any assessment of penalty without following the procedure. If the assessment is finalised without affording proper opportunity to the consumer by issuing provisional order and by providing opportunity for filing objection and for personal hearing, such assessment cannot be legally sustained.
7. Here it is evident that, with respect to the impugned bills which imposed continued penalty on the allegation of usage of unauthorised additional load, no procedure as contemplated under section 126 was followed. Hence the impugned demand cannot be sustained on the said ground also.
8. For th reasons mentioned as above, the demand for penalty contained in the impugned bills cannot be sustained. Therefore this writ petition is allowed and Exts.P13, P15 to P15(e), P16, P18 to P18 (b), P19 and P19 (a) are hereby quashed to the extent it demanded penalty on fixed charges and energy charges on the basis of the alleged continuation of the unauthorised additional load. The 3rd respondent is directed to recompute the demand under the bills mentioned above, after deleting the portion of the penalty. A revised calculation shall be issued to the petitioner at the earliest, at any rate within a period of one month from the date of receipt of a copy of this judgment. Payments already made by the petitioner shall be appropriated in accordance with the revised demand and excess amount if any, shall be refunded/adjusted.
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C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A. to Judge