Unauthorized use of electricity includes misuse or malpractices while using electricity, and the assessing officer is legally bound to pass a final assessment order after considering objections.

JUDGMENT :

1. The petitioner is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the impugned memorandum (Annexure-L) bearing No.PoAa/Jada/CB.Memo/36/2019 dtd. 7/8/2019 issued by the 3rd respondent and for a writ of mandamus directing the 4th respondent to consider the objections (Annexure-C) dtd. 13/11/2019 to the "Back Billing notice and thereafter to pass final assessment order as required under Sec. 126 (3) of the Electricity Act, 2003 (for short 'the Act').

2. Heard Sri K. Srinivasa, learned counsel for the petitioner and Sri G.C. Shanmukha, learned counsel for the respondents 1 to 4. Perused the writ petition papers.

3. Learned counsel for the petitioner would submit that the power was sanctioned to the petitioner's premises bearing RR. No. AKLHT 305 with sanctioned load of 500 KVA. The petitioner was engaged in the business of manufacture and supply of tiles and civil contract works. It is submitted that on 25/9/2019 the 3rd respondent inspected the petitioner's premises and it is alleged that the petitioner is dishonestly and unauthorizedly using the power sanctioned for other than the purpose for which it was sanctioned. It is further alleged that as the petitioner was using the power for hot mix plant, it would not fall under industrial use and separate tariff under HT-2(a)(i) would be applicable. Thus on the report of the 3rd respondent, 4th respondent issued Back Billing notice (Annexure-B) dtd. 19/10/2019. Learned counsel for the petitioner would contend that utilization of power, at the best would be unauthorized use and it would not amount to theft. Therefore, the respondents are required to consider the objections of the petitioner as per Annexure-C dtd. 13/11/2019 and 4th respondent is required to pass order under Sec. 126 of the Act. Thus he submits that without going into the question of validity of Memorandum (Annexure-L) dtd. 7/8/2019, 4th respondent be directed to consider the objection filed by the petitioner to the back billing notice and pass orders under Sec. 126 of the Act.

4. Per contra, Sri G.C. Shanmukha, learned counsel for the respondents submits that the petitioner was sanctioned power for granite industry, whereas the petitioner as on the date of inspection on 25/9/2019 was utilizing the power sanctioned for the purpose of godown, for Hot Mix Plant without permission. Therefore, FIR was filed and criminal case was registered against the petitioner. Since the petitioner is using the power unauthorizedly, it is his submission that Sec. 135 of the Act would be applicable and not Sec. 126 of the Act. Thus he prays for rejection of the petition.

5. It is not in dispute that power was sanctioned to the petitioner's premises bearing R.R.No. AKLHT 305 with sanctioned load of 500 KVA for industrial purpose. On 25/9/2019 the petitioner's installation was inspected by the staff of Executive Engineer (Electrical) Vigilance and it was found that the petitioner was utilizing the power sanctioned for the purpose, other than the purpose for which it was sanctioned. Criminal case was filed in Cr.No.109/2019 with Ramanagara Police Station under Sec. 135(1), of Electricity Act, 2003 r/w Sec. 379 IPC. Thereafter, on 19/10/2019 notice Annexure-B is issued directing the petitioner to pay the back billing charges within 15 days as per the KERC (ES&D) Sec. 42.07 from the date of receipt of the letter or to file objection if any within 15 days from the date of receipt of the letter. It is the case of the petitioner that, petitioner filed objections as per Annexure-C dtd. 13/11/2019, but the said objection is not considered by the 4th respondent. Annexure-B indicates that the back billing notice is issued under Clause 42.07 of the Conditions of Supply of Electricity of the Distribution Licensees in the State of Karnataka (for short 'the Supply Code'). Clause 42.07 provides for passing assessment order on account of prejudicial use of power under Clauses 42.01, 42.02