IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 OP.No. 26123 of 1999(I) ----------------------- PETITIONER(S): --------------- GEORGE JOSEPH, DEEP SEA PRODUCTS, 844, SAKTHIKULANGARA, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S): --------------- 1. K.S.E.B., REP. BY ITS SECRETARY, VAIDHYTHI BHAVAN, TRIVANDRUM. 2. DY. CHIEF ENGINEER, ANTI POWER THEFT SQUAD, KSEB, TRIVANDRUM. 3. THE ASST. EXE. ENGINEER, ELECTRICAL MAJOR SECTION, SAKTHIKULANGARA, KOLLAM. 4. DY. CHIEF ENGINEER, ELECTRICAL CIRCLE, KESB, KOLLAM. ADV. SRI.C.K.KARUNAKARAN SC, KSEB FOR R1 TO R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 3/10/2008, A/W. O.P.NOS.27988/99 & 29518/1999, THE COURT 4.10.2008 DELIVERED THE FOLLOWING: O.P.NO.26123/1999 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE MAHZAR. P2. COPY OF THE COMMUNICATION DTD.22.6.99 BY R3. P3. COPY OF THE METER CARD. P4. COPY OF THE LETTER SENT TO R3 DTD.25.6.99. P5. COPY OF THE INVOICE DTD.1.7.99. P6. COPY OF THE STATEMENT GIVEN BY R3. P7. COPY OF THE APPEAL DTD.14.7.99. P7(A) COPY OF THE COMMUNICATION DTD.14.7.99 BY R2. P8. COPY OF THE ORDER BY R2 DTD.29.9.99. P9. COPY OF THE REPRESENTATION DTD.31.7.99. P10. COPY OF THE CIRCULAR DTD.31.10.92. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================= O.P.Nos.26123, 27988 and 29518 of 1999 ================= Dated this the 14th day of October, 2008 J U D G M E N T The issues involved in these original petitions are identical and therefore, these original petitions are heard together and disposed of by this common judgment. O.P.Nos.26123 and 27988 of 1999 are filed by the same petitioner challenging demands for penal and additional electricity charges in respect of unauthorised load and incorrect meter for different periods and O.P.No.29518/1999 is filed by another petitioner challenging similar demand. Since the questions of law involved are the same in all the three writ petitions, I shall first decide those questions of law in O.P.Nos.26123 and 27988 of 1999 and then apply the same to the fact situation in O.P.No.29518 of 1999. O.P.Nos.26123 and 27988/1999: 2. The petitioner is engaged in the business of running a freezing plant in the name and style of “Deep sea Products”. The plant has an electricity connection with a power meter and a light o.p.26123/99 etc. 2 meter, for a total power allocation of 72 KW. On 4.6.1999, the Anti-Power Theft Squad of the 1st respondent Electricity Board, inspected the electrical installation of the petitioner and prepared Ext.P1 mahazar, which was got signed by an operator of the petitioner, in which, it was recorded that the petitioner was unauthorisedly using 154 KW power load as against the authorised load of 72 KW. He was found using a welding machine and a 75 HP compressor motor which were not part of the authorised load. It was also recorded in Ext.P1 that one phase of the 3 phase light meter was not recording consumption resulting in the meter recording only 50% of the actual consumption. By Ext.P2 dated 22.6.99, the petitioner was directed to remove the additional load. By Ext.P4 dated 25.6.1999, the petitioner replied that the 75 HP load had been connected only to a generator installed by the petitioner, for sanction of using which applications have been submitted to the Board. It was further stated therein that they were drawing power only within the limit of 96HP allocated to the petitioner. Thereafter, the petitioner was served with Ext.P5 demand for Rs.3,69,682/- along with Ext.P6 details thereof, which consisted of the following o.p.26123/99 etc. 3 components calculated for the months of January to June 98. I. 3 times normal rate of fixed charges for unauthorised additional load of 82 KW. II. Penal charges for unauthorised installation of welding set of 13 KW. III. 2 times rate of current charges for the proportionate consumption to the unauthorised load. IV. 50% of the recorded consumption of light meter since one phase was not recording consumption. Against the demand, the petitioner filed Ext.P7 appeal before the 2nd respondent, which was disposed of by Ext.P8 order, confirming the demand with the correction of the unauthorised load as 78KW instead of 82 KW. The petitioner has filed O.P.No.26123 of 1999 challenging those proceedings seeking the following reliefs: “[i] issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibit P5 invoice issued by the third respondent and Exhibit P8 order of the second respondent and quashing the same. [ii] issue a writ of mandamus or any other appropriate writ, direction or order commanding the third respondent to refrain from disconnecting the power supply to the premises of the petitioner bearing Consumer No.9498 for non-payment of the amounts covered by Exhibit P5 invoice of the third respondent as modified by Exhibit P8 o.p.26123/99 etc. 4 order of the second respondent. [iii] issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents 3 and 4 to conduct physical verification in the premises of the petitioner to ascertain the connected load in his premises and to revise all the bills issued to the petitioner after 25.6.99 on that basis.” Thereafter, a further amount of Rs.1,84,175/- was demanded for the months of July, August, September and October, 1999 also on the ground that the unauthorised load had not been regularised, by issuing Exts.P5 and P6 in O.P.No.27988 of 1999, and therefore, that original petition was filed seeking the following reliefs: “[i] issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibit P5 invoice issued by the third respondent and quashing the same. [ii] issue a writ of mandamus or any other appropriate writ, direction or order commanding the third respondent to refrain from disconnecting the power supply to the premises of the petitioner bearing Consumer No.9498 for non-payment of the amounts covered by Exhibit P5 invoice of the third respondent.” 3. The petitioner's contention is that he has not used any unauthorised load. According to him, the compressor motor and the welding unit were not connected to the main lines and were intended to be used only in the generator installed, for sanction for using which he had submitted applications and the same was never connected to the main lines. According to him, the o.p.26123/99 etc. 5 electrical installation of the petitioner is connected to a transformer of the Board having a capacity of only 100 KW and therefore the petitioner cannot connect a load of 149 KW in his electrical installation. He disputes the recitals in Ext.P1 mahazar and submits that the signature of an operator therein cannot be taken to mean that the petitioner has agreed to the contents thereof. According to him, clause 42 of the Regulations Relating to Conditions of Supply of Energy is not attracted to the fact situation to hold that the petitioner had exceeded the contracted load without permission and therefore, there is no justification for billing at three times for the allegedly excess connected load. 4. As regards the 2nd item of demand of penal charges for unauthorised installation of welding unit also, he contends that the same was used only for ½ an hour and there is no evidence to show that he had used the same for 7 days. 5. The petitioner disputes the demand for 2 times current charges for the proportionate consumption to the unauthorised load, on the ground that in so far as the respondents have no case that he had consumed energy which are not recorded in the meter, Regulation 43 is not attracted and therefore, no penal o.p.26123/99 etc. 6 charges are recoverable from him. 6. As far as the demand for 50% of the recorded consumption of the light meter on the reasoning that one phase was not recording consumption is concerned, the petitioner contends that without referring the matter to the Electrical Inspector as provided under Section 26(6) of the Indian Electricity Act, 1910, the respondents had no jurisdiction to decide the fact of short recording and the extent thereof. 7. Counter affidavits have been filed in both cases by the 3rd respondent supporting the impugned orders. 8. I have considered the pleadings and arguments of both sides in detail. 9. The first issue to be considered is a factual one, as to whether the petitioner had in fact used unauthorised load in his unit. The petitioner does not dispute the presence of the 75HP compressor motor in the premises of the establishment at the time of inspection. As per Ext.P1 mahazar the same was found in the compressor room itself along with two other compressor motors of 25 HP and 35 HP. The petitioner has no case that the additional compressor unit could not have been used in the KSEB o.p.26123/99 etc. 7 connection. He, admittedly, had not obtained permission for installation of the generator in his establishment. He has no explanation as to why without obtaining such sanction he brought the compressor motor to the premises. Therefore, the respondents could not have been faulted for concluding that the 75HP motor was unauthorised connected load intended to be used in the main lines. In such circumstances, the burden is on the petitioner to prove otherwise, in which direction the petitioner had not made any attempt whatsoever. On the other hand, the 2nd respondent had considered his contentions in this regard and held thus in Ext.P8: “The nature of business of the unit is such that the entire electrical loads, the majority of which are electric motors need not entirely be put into continuous operation. Even in the case of such an instance, the supply system from the transformer may hold for a short interval of time considering the overloading capacity of distribution transformers. In the connected load statement prepared at the time of inspection at the premises of the consumer in the form of a site mahazar, the 75HP load is also mentioned and taken for arriving the connected load. Since the statement is seen duly acknowledged by the operator of the unit present, this would possibly have been disputed with, but which has not taken place. Apart from the statement of the petitioner consumer as to the 75 HP load is connected up with generator supply which was never used pending sanction, no evidence or substantive proof is produced in support of it. Further more the consumption for the month of 5/99 is 35505 units from the consumption of 12798 units for the month of 9/98 with progressive increase which is indicative of addition of extra loads to the system.” I am unable to find any infirmity in the reasoning given by the 2nd o.p.26123/99 etc. 8 respondent in the same. As such, I cannot but uphold the said findings. Therefore, there is no merit in the challenge against item No.I demand in Exts.P5 and P6, namely, additional charges towards 3 times normal rate of fixed charges for unauthorised additional load, as corrected as 76 instead of 82 by Ext.P8, since the same is authorised by Regulation 42(d) of the Regulations Relating to Conditions of Supply of Electrical Energy, 1990. 10. The next issue is regarding penal charges for unauthorised installation of welding set of 13 KW for 7 days. Initially I was inclined to think that this additional load is also included in item I, that too, for 6 months, this could not have been additionally charged for 7 days. But there is nothing to show that this load is included in item No.I. Moreover, the petitioner has also not raised a contention that this load is also included in item no.I and therefore, there is duplication. On the other hand, his only contention is that he had used the welding set only for ½ hr. and there is no material to show that the same was used for 7 days. As in the case of 75 HP motor when the presence of the welding set is admitted, it was for the petitioner to prove its limited use by producing proof in which direction also o.p.26123/99 etc. 9 the petitioner has not chosen to make any attempt whatsoever, especially since the contention of the respondent in this regard is that on local enquiry the existence of the same for 7 days was verified. In Ext.P8 the 2nd respondent holds thus in this regard: “There is a further demand raised in the bill towards unauthorised addition of a welding set having a capacity of 13KW charged at 3 times rate for 7 days. as per site mahazar prepared at the time of inspection, the fact of such an installation is established. The period of assessment as per bill is 7 days but is objected with by the petitioner consumer stating that the same was in place for ½ hr. only. The period of assessment as 7 days was based on local enquiries made by the inspecting team and the objection raised by the petitioner consumer is without any conclusive proof to substantiate his statement. Hence I find that the period of assessment made in this regard for the temporary unauthorised extension effected does not require any reconsideration or revision and it is held that the demand raised towards this account is valid, correct and accordingly payable.” I am unable to find any infirmity in this reasoning also and therefore I uphold the item No. II demand also in Exts.P5 and P6. 11. However, I find considerable merit in the challenge against the demand in item No. III namely, 2 times rate of current charges for the proportionate consumption to the unauthorised load. In Ext.P7 appeal memorandum the petitioner has raised a specific ground against this demand as ground No. 7 thus: o.p.26123/99 etc. 10 “7). If in fact the appellant had used any additional load as alleged, the same would reflect in the power meter. If so, there is no meaning in assessing the appellant 2 times of the normal current charges, especially when the power meter was fond working in order at the time of inspection.” In Ext.P8 appellate order, conspicuously, the 2nd respondent has not dealt with the said contention at all, although the same is referred to in the beginning of Ext.P8 in paragraph 2 thereof. The power meter of the petitioner's unit was admittedly working properly at the relevant time. The petitioner had been paying current charges for the use of energy as recorded in the meter. The respondents have no case that any use of energy has been omitted to be recorded in the meter. There is no allegation of theft of energy, misuse of energy supplied to him, or improper use of energy or dishonest abstraction, consumption or use of energy in a manner prejudicial to the Board, so as to attract Regulation 43 except unauthorised use of additional load for which 3 times penalty has already been charged in item no.I demand. Of course the counsel for the Board would contend that the unauthorised additional load would amount to use of energy in a manner prejudicial to the Board attracting Regulation 43 also. But I am of opinion that in respect of use of additional o.p.26123/99 etc. 11 unauthorised load the same is already covered by Regulation 42 and therefore if for the same again Regulation 43 is also applied the same would amount to a duplication. This is evident from a comparative reading of the two regulations. Regulation 42 reads thus: “42. Misuse of Energy.- (a) The consumer shall not keep connected to the Board's supply system any apparatus which the Board deems to interfere with or affect supply injuriously to other consumers. (b) Consumers availing three phase supply should keep their load balanced. The maximum difference in current in any two phases should not be more than 5%. (c) The consumer shall not make such use of the supply given to him by the Board as to act prejudicially to the Board in any manner whatsoever. (d) If the consumer exceeds the contracted load without prior permission of the Board or energy supplied for a specific purpose under a particular tariff is used without the Board's knowledge and approval for a different purpose not contemplated in the contract for supply and for which higher tariff is applicable coming under misuse of energy within the meaning of the I.E. Act, 1910. Misuse of energy will be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse unless there are convincing reasons for adopting different periods and supply disconnected without notice. The imposition of this higher rate will not relieve the consumer from any penalties imposed by law. (e) If at any time the consumer exceeds his contracted load without prior permission of the Board, the Board have the right to disconnect the supply and recover the damages caused, if any, from him on account of his exceeding the contract load.” Regulation 43 reads thus: “43. Theft of Energy.- If at any time a consumer is found to o.p.26123/99 etc. 12 misuse energy supplied to him or to make improper use of energy or dishonestly abstract, consume or use any energy in any manner prejudicial to the Board, the Board shall, without prejudice to the rights of the Board or the provisions of the I.E. Act, 1910, disconnect the supply without any notice. Theft of energy shall also be billed at three times the rate applicable in the respective tariff for a period of six months from the date of detection of theft unless there are convincing reasons for adopting a different period.” The language used in the two regulations shows that the two are intended to be applied in two different spheres. Regulation 42 is to be applied to cases where a consumer connects any apparatus to the Board's supply system which tends to interfere with or affect supply injuriously to other consumers and the consumer exceeds the contracted load without prior permission or energy supplied for a specific purpose under a particular tariff is used without the Boards knowledge and approval for a different purpose not contemplated in the contract for supply for which a higher tariff is applicable, which comes under misuse of energy within the meaning of Indian Electricity Act, 1910. This contemplates only 'misuse of energy' and does not refer to any dishonest intention. On the other hand Regulation 43 starts with the heading 'Theft of energy'. Although the 1st sentence in Regulation 43 refers to misuse of energy also the second sentence thereof confines billing at three times the rate to 'theft o.p.26123/99 etc. 13 of energy' alone. Therefore Regulation 43 applies exclusively to theft of energy. Hence, without a case of theft of energy penalty under Regulation 43 cannot be imposed. In this case there is not even an allegation that the petitioner is in anyway guilty of theft of energy without which Regulation 43 cannot be made applicable to the petitioner. Once application of Regulation 43 is excluded in the petitioner's case, clearly item no. III demand is a duplicate application of Regulation 42 for the same irregularity of unauthorised connected load which is unsustainable in the petitioner's case. 12. I am supported in this view by the judgment of a learned single judge of this court in the case of J.D.T. Islam Orphanage Committee v. Assistant Engineer [2007(3)KLT 388] which refers to a Division Bench decision in W.A. No. 1231/2003. Reading out from a copy of the said Division Bench decision, the counsel for the Board would contend that the said Division Bench decision was not concerned with the question as to whether penalty under both Regulations 42(d) and 43 would be payable for unauthorised load, but was dealing only with the question as to whether 3 times penalty is leviable in all cases o.p.26123/99 etc. 14 uniformly irrespective of the degree of culpability of the consumer. A reading of the said judgment would prima facie show substance in the contention of the counsel for the Board. However, I respectfully agree with the conclusion in J.D.T. Islam Orphanage Committee's case even after eschewing the reliance on the Division Bench decision, for which I have also given additional reasons separately hereinbefore. In this connection I must consider the applicability of the decision referred to by the counsel for the Board in Hyderabad Vanaspathy Ltd. V A.P. State Electricity Board and others, [(1998) 4 SCC 470], in paragraph 27 of which it is held thus: '27. We are unable to accept the contentions. Section 49 empowers the Board to supply electricity on “such terms and conditions as it thinks fit”. It may also frame uniform tariffs. We have found that the terms and conditions of supply are statutory in character. They can be invalidated only if they are in conflict with any provision of the Act or the Constitution. Learned counsel have not shown to us any provision in the Supply Act with which clause 39 is in conflict. Insofar as the Supply Act is concerned, the argument hovers around Section 49 only. The only limitation in that section is that the Terms and Conditions of Supply should be subject to the provisions of the Act. Clause 39 does not violate any provision in the Supply Act. It is the statutory duty of the Board to arrange for the supply of electricity throughout the State and for transmission and distribution of the same in the most efficient and economical manner. For that purpose it has necessarily got to prevent unauthorised user, pilferage or malpractices by the consumers. Hence the necessary safeguards have to be provided as part of the conditions of supply so that the consumers will be bound by them. While on the one hand, the Board has to recoup the loss suffered by such pilferage or other o.p.26123/99 etc. 15 malpractices, it has also on the other got to stop immediately the continuation thereof. Hence the Terms and Conditions of Supply have to provide for compensation as well as immediate disconnection. For ascertaining the loss and fixing the compensation, a uniform procedure has to be framed and a machinery constituted. Clause 39 is only doing that. Every consumer is made fully aware of the said terms and he signs the contract only on that basis. He gives an undertaking in that contract that if he is found indulging in any malpractices etc. he shall pay additional charges as may be levied by the Board and that the Board have the right to disconnect supply of electricity to his premises for such period as may be decided by the Board”. The counsel for the Board submits that it is exactly for the purpose as explained by the Supreme Court that in Regulation 43 disconnection and penalty both are provided for. Therefore, the 2nd sentence has to be read in conjunction with the 1st sentence is the contention. I am unable to agree. It is true that the Board could have, in addition to disconnection, provided for penalty also for each of the malpractices mentioned in the first sentence. But significantly the Board decided to make the penalty provision applicable to 'theft of energy' alone. It is settled law that a penal provision has to be construed strictly. In any event for unauthorised load a penalty is already provided for in Regulation 42(d) and therefore Regulation 43 cannot be construed as another penal provision for the same irregularity. If it is so construed, it would amount to double jeopardy. o.p.26123/99 etc. 16 13. Therefore the impugned demand of 2 times rate of current charges for the proportionate consumption to the unauthorised load in addition to 3 times normal rate of fixed charges for unauthorised additional load is clearly without jurisdiction and liable to be set aside. 14. Now we come to the validity of the last item of demand, namely, 50% of the recorded consumption of light meter since one phase was not recording consumption, resolving of which poses some difficulty in view of different views