IMPORTANT POINT
" To invoke the provisions of Clause 42(d) there must necessarily be use in excess of contracted load or a misuse by the consumer for which a higher tariff is applicable and it must necessarily come under the definition of misuse of energy within the meaning of the Act of 1910.
" The penalty prescribed under Clause 42(d) cannot be imposed- The Board does not have a case that the tariff of the consumer has been altered because of the unauthorised additional load and hence we are of the opinion that the action taken by the Board imposing the penalty as prescribed under Clause 42(d) is unsustainable.

ASHOK MENON, J.

W.A. No.2276 of 2016

1. Aggrieved by the impugned judgment dated 29.08.2016 of the learned Single Judge in O.P.No.22726/2002, the petitioner is in appeal before us in W.A.No.2276/2016.

2. The appellant is a consumer of the 2nd respondent-Kerala State Electricity Board (KSEB) and has electric connection with a sanctioned load of 15 KW. The Anti-power Theft Squad (for brevity 'APTS') inspected the premises of the appellant on 05.08.2000 and detected the petitioner using 30 KW of power without permission of the Board. Under Clause 42(d) of the Conditions of Supply of Electrical Energy, 1990 (for brevity 'Supply Conditions'), Ext.P1 bill dated 11.08.2000 was raised for Rs.68,507/-. The bill for actual consumption of energy during the month of July 2000 received by the petitioner is Ext.P2, for fixed charges of Rs.675/-.

3. The petitioner filed statutory appeal and also filed O.P.No.25203/2000 before this Court challenging the demand. Vide Ext.P3 judgment, dated 30.08.2000 this Court directed the petitioner to deposit 1/3rd of the amount demanded as per Ext.P1 and the statutory appeal was directed to be disposed of on merits and the Board was directed to receive payment offered by the petitioner as per the normal bill, pertaining to usage of electricity.

4. In the meanwhile, on 11.10.2000, the petitioner requested regularisation of the excess load and claims to have removed six split Air Conditioners of 1.5 ton each, during the second week of August, 2000. Stating that the consumer had not dismantled the ACs., the Board refused to regularise and continued imposing of penal rates. Challenging this, the consumer once again approached this Court with O.P.No.27249/2000 questioning the bill he received for the month of August, 2000, which was disposed of by judgment dated 25.09.2000 directing disposal of the statutory appeal, and to accept the admitted amount of bill. The petitioner filed O.P.No.30032/2000 challenging the bill for the month of September, 2000 and for the subsequent bills received, O.P.Nos.33285/2000 and 103/2001 were filed. Recovery of entire amount was stayed by this Court. In the meanwhile, the petitioner had filed an application for regularisation in view of his proposal to install a 40 KW DG Set and requested to accord sanction under Section 44 of the Electricity (Supply) Act, 1948 (for brevity “Supply Act”) vide Exts.P4 and P5. On 07.05.2001, temporary sanction was granted to the appellant by the Deputy Chief Electrical Inspector to install the DG Set. Thereafter, the statutory appeal filed by the appellant was rejected vide Ext.P6 order.

5. The petitioner filed I.A.No.12017/2015 for amendment of the O.P., challenging Clause 42(d) of the Supply Conditions as being beyond the scope of Indian Electricity Act, 1910 (for brevity “Act of 1910”) and also to declare that Clause 42(d) is ultra vires and beyond the powers delegated to the 2nd respondent under Section 79(j) of the Supply Act.

6. The petitioner states that the misuse of electricity load suggested by Clause 42(d) at three times the energy bill is highly excessive and that Sections 39 to 56 of the Act of 1910 provides for offences and punishment for misuse. In view of that, the Clause cannot be inconsistent with the provisions contained in Act of 1910 as well as the Supply Act.

7. The learned Single Judge rejected the challenge raised by the petitioner and did not find any infirmity in Clause 42(d) of the Supply Conditions and thus dismissed the Original Petition.

8. Aggrieved by the dismissal of the Original Petition, the appellant is before us stating that Ext.P6 order passed by the 4th respondent is illegal, improper and liable to be quashed. It is further urged that even if the consumer exceeds the sanctioned load without prior permission of the Board, under Clause 42(d) the consumption can be treated only as misuse of energy under the Act of 1910. The power given to the Board under Clause 42(d) is beyond the scope of the provisions contain