Point of Law: Electricity - On a reading of Section 126 of the Act, 2003 and Regulation 27A, it is clear that a clear cut procedure is prescribed for dealing with unauthorised load, and merely because the Billing Officer has calculated the excess connected load in the successive monthly bills, that will not regularise the unauthorised connected load. A connected load is fixed by the Board and if additional connected load is required, necessary sanction has to be secured from the Board authorities and thus refix the connected load

JUDGMENT :

The petitioner, one of the Directors of a company namely West Rock Properties Ltd., registered under the Companies Act engaged in the business of property development, challenges Regulation 51(1) of the KSEB Terms and Conditions of Supply, 2005 and to declare the said provision as ultra vires of the Electricity Act, 2003 (‘Act, 2003’ for short) and also to quash Ext.P1 invoice, Ext.P2 notice, Ext.P9 order dated 27.01.2010 passed by the 4th respondent -Assistant Engineer of the Kerala State Electricity Board Ltd (K.S.E.B Ltd), Ext.P11 order dated 07.02.2008 issued by the first respondent K.S.E.B Ltd making certain clarifications with respect to the manner in which penalty is to be imposed for the unauthorised connected load provided under Section 126 of the Act, 2003 and Ext.P12 demand notice directing the petitioner to pay an amount of Rs.8,75,902/-, failing which recovery action was threatened.

2. Brief material facts for the disposal of the writ petition are as follows:

The petitioner has availed an electricity connection having consumer No. 18147 in his personal capacity for the purpose of constructing a multi storied building complex. The issue started when Ext.P1 notice dated 17.08.2009 was issued to the petitioner directing him to pay an amount of Rs.8,75,902/-towards the short assessment against fixed charges and energy charges for the period from 07/2007 to 05/2009. The allegation was that the petitioner had connected an additional load of 23 KW, when the authorised connected load was only 7 KW. According to the petitioner, the said allegation is not correct, as in the invoice issued from 16.07.2007 onwards, the authorised connected load of the petitioner is shown as 31000 Watts (31KW); whereas, the present assessment is made by taking the total load as 23000 Watts.

3. The case of the petitioner is that the connected load of the petitioner, though not enhanced by any order from 7 KW, since the bills are issued for 31000 Watts, there is no unauthorised load. Even though the petitioner submitted an objection to Ext.P1 demand notice and ExtP2 calculation statement, the Board was not prepared to accept the contention raised by the petitioner and it was accordingly that Ext.P9 final determination order was passed on 27.01.2010 after providing an opportunity of hearing to the petitioner.

4. The learned counsel for the petitioner contended that there is no unauthorised load in the premises, as in all the bills issued to the petitioner from 16.07.2007 onwards, the authorised load of the petitioner is shown as 31KW; whereas, the present penalty is based on the allegation that the load exceeded by the petitioner is 23KW; that the penalty for the normal consumption charges was also assessed by the Board which is not permitted under law and therefore, the present penalty imposed amounts to a mistake committed by the Board, since the connected load stands regularised as is evident from the demand made for 31KW; that no proceedings under Section 126 of the Act, 2003 can be initiated for unauthorised additional load as it will not come under the definition of ‘unauthorised use of electricity’ as defined in the explanation to Section 126 of the Act, 2003; that the only provision which enables the Board for penalisation of additional load is Regulation 51(1) of the KSEB Terms and Conditions of Supply, 2005, which was prepared by the first respondent Board and approved by the 5th respondent i.e., the Kerala State Electricity Regulatory Commission and since there is no provision in the Act, 2003 empowering the Commissioner or the Board to make any provision for penalisation, Regulation 51(1) of the KSEB Terms and Conditions of Supply, 2005 cannot be enforced; and that even if the Board is vested with powers for imposing penalty for unauthorised load, the penalty imposed is unreasonable and irrational and therefore, there is n