The court established that the burden of proof lies on the consumer to demonstrate the actual period of unauthorized electricity use to challenge assessments under Section 126(5).

JUDGMENT :

S. Manu, J.

Appellant is a Society registered under the provisions of the Travancore-Cochin Literary Scientific and Charitable Societies Registration Act, 1955. Appellant has an electric connection with consumer No.14438 under LT-VII C commercial tariff. A surprise inspection was conducted on 9 October 2014 by Anti Power Theft Squad (APTS), Thrissur unit of the Kerala State Electricity Board in the premises of the Appellant. APTS found that the Appellant had added additional load to the tune of 50 KW without obtaining sanction from the Electricity Board. A provisional bill under Section 126 of the Electricity Act, 2003 for Rs.13,49,366/- was issued to the Appellant on 15 October 2014. A separate notice directing the Appellant to disconnect the additional load was also issued. After considering the objection submitted by the Appellant and hearing the appellant, Ext.P2 final bill was issued. The amount demanded in Ext.P2 dated 14 November 2014 is Rs.13,49,366/-.

2. Appellant challenged the final bill by approaching the Kerala State Electricity Appellate Authority. The said authority disposed the appeal by order dated 30 June 2015. Final assessment order was set aside. The Board was directed to issue revised assessment within 15 days under LT-VIIA tariff for entire usage of electricity, limiting the period of assessment from 16 June 2014 to 9 October 2014. Further, the Board was directed that no surcharge need be levied for the period of pendency of the appeal and excess amount remitted if any shall be refunded with interest as per Regulation 158 (18) of Kerala Electricity Supply Code, 2014.

3. The Board approached this Court in W.P.(C)No.34059 of 2015 aggrieved by the order passed by the appellate authority. The Board contended that in view of Section 126(5) of the Electricity Act, 2003, if the period during which unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection. In the present case, there was no evidence as to when the unauthorised load was connected. Therefore, the assessment was made for a period of 12 months in accordance with Section 126(5). The Board submitted that the appellate authority went wrong in limiting the period from 16 June 2014 on the ground that an application for additional power requirement was submitted by the Appellant on 16 June 2014. The Board further submitted that the reasoning of the appellate authority that the Assistant Engineer was bound to check whether usage of additional load was intended for authorised purpose was incorrect. The officer had not committed any omission as there was no occasion to see the connected load inside the building. The Board also submitted that there was no reason to assume that additional load was not connected prior to 16 June 2014.

4. The learned Single Judge accepted the contentions of the Board and allowed the writ petition. Appellate order was set aside and the final assessment was restored. Aggrieved by the judgment of the learned Single Judge this writ appeal is filed. Learned Senior Counsel Sri. P.B. Krishnan appearing for the Appellant submitted that the intervention by the learned Single Judge was incorrect. He argued that the Appellate Authority had set aside the assessment after proper consideration of all relevant aspects. He pointed out that the Appellate Authority had rejected many of the contentions of the Appellant and found only the contention regarding period of assessment in favour of the Appellant. He asserted that the Appellant came forward with an application for additional power requirement on 16 June 2014 and therefore the APTS was not justified in assuming that the load connected as on the date of inspection was unauthorised. So also, he argued that assessing unauthorised use for a period of 12 months is unjust and illegal in the case on hand. The learned Standing Counsel for KSEB, Sri. B. Premod however submitted that t