IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 12068 of 2009(C) --------------------------------- PETITIONER: --------------- MARIA PALANA SOCIETY, POOLANI, KUNNAPPILLY P.O., CHALAKUDY, THRISSUR DISTRICT-680 311, REPRESENTED BY ITS PRESIDENT SMT.JOYCE SEBASTIAN. BY MR.J.JULIAN XAVIER - ADVOCATE MR.FIROZ K.ROBIN - ADVOCATE RESPONDENTS: ------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER, ELECTRICAL DIVISION, KSEB, IRINJALAKUDA. 3. ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB, MELOOR, THRISSUR DISTRICT. 4. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION, 30, PARAMESWARA BHAVAN, BELHEAVEN GARDENS, KAWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN. ADV. MR.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.12068 of 2009 --------------------------------- Dated, this the 21st day of May, 2009 J U D G M E N T The contention raised in this writ petition, filed challenging Exts.P8, P8(a) and P11 levying penalty on energy charges, is that such penalty on energy charges is impermissible in terms of the provisions contained under Section 126 of the Electricity Act, 2003. 2. The learned counsel for the petitioner would contend that till Section 126 was amended by Amendment Act, 2007, even according to the Board, penalty was payable only on fixed charges and that subsequent to the amendment on the strength of Ext.P12, a Board order dated 07/02/2008, penalty is levied on energy charges as well. It is stated that so long as the Act does not contemplate levy of penalty on energy charges, such levy is impermissible, and cannot be legitimised by issuance of a Board order, namely Ext.P12. 3. I have heard the learned counsel for the petitioner and the learned standing counsel appearing for the Board as also the 4th respondent. WP(C) No.12068/2009 -2- 4. In my view, the contention raised by the petitioner is only to be rejected. As can be seen from Section 126 of the Electricity Act, 2003 as amended, once the Assessing Officer reaches the conclusion that unauthorised use of energy has taken place, the assessment shall be made for the entire period and the assessment shall be at the rate equal to twice the tariff applicable for the relevant category of services. A reading of Section 45(3)(a) shows that charges for electricity certified by a distribution licencee include fixed charges in addition to the charges for the actual electricity supplied and consumed. In the light of the above statutory provisions, the irresistible conclusion is that tariff includes both fixed charges and energy charges and that once the Assessing Officer has reached the conclusion that unauthorised use of electricity has taken place, he is bound to make assessment at the rate equal to twice the tariff applicable, which, includes the dues payable towards energy charges also. If that be so, the levy of penalty, as done in this case is unassailable and the petitioner cannot seek the relief sought for. The writ petition is, therefore, dismissed. (ANTONY DOMINIC, JUDGE) jg