The court held that excess connected load constitutes unauthorised use of electricity, but the Appellate Authority cannot enhance demands without a challenge from the original authority and notifying the consumer.

JUDGMENT :

(A.K. Jayasankaran Nambiar, J.)

As a common issue arises in the Writ Appeal and the two Writ Petitions, they are taken up together for consideration and disposed by this common judgment.

The Brief Facts:

W.A.No.44 of 2019 & W.P(C).No.7734 of 2019

2. The writ appeal impugns the judgment of a learned Single Judge in W.P(C).No.31411 of 2017 whereby the challenge by the appellant against an order of the Appellate Authority constituted under Section 127 of the Electricity Act, 2003 was dismissed as devoid of merit. W.P(C).No.7734 of 2019 on the other hand is a writ petition filed by the Kerala State Electricity Board Ltd. [KSEB], the distribution licensee in the instant case, impugning the orders of the assessing authority and the appellate authority under the Electricity Act to the extent that they passed their respective orders in relation to the writ appellant, in a manner that was inconsistent with the terms of the Electricity Act. The brief facts necessary for a disposal of these two cases are as follows:

The appellant is a consumer of a High Tension Industrial connection from the KSEB and its monthly bill for electricity charges is based on a contract demand plus the rates at applicable tariff for the actual units of electricity consumed. In the agreement entered into with the KSEB, the appellant had specified a contract demand of 155KVA and had declared a connected load of 125KW. During an inspection carried out by the Anti-Power Theft Squad of KSEB on 25.02.2017, however, the connected load in the appellant’s premises was seen to be 290KW in excess of what was declared [125KW]. A provisional assessment notice was therefore served on the appellant under Section 126 of the Electricity Act, proposing to demand an amount of Rs.1,06,90,902/- towards electricity charges, for a period of24 months prior to the date of inspection.

3. The appellant submitted a detailed explanation to the provisional assessment proposed by the KSEB and after considering the same, the assessing authority reduced the demand to Rs.48,60,471/-. While the assessing authority found that the excess connected load was admitted, and a finding regarding the period from which the unauthorised use of electricity took place could be determined by looking at the date from which an increased usage of electricity was noticed, since the CT meter of the appellant was changed by the KSEB in March 2016, the demand for differential charges could not be made for a period prior to that date. Accordingly, the demand was confined to the period from March 2016 to February 2017.

4. In an appeal carried by the appellant to the Appellate Authority under the Electricity Act, the latter found that there was no justification for the assessing authority to limit the demand to the period from March 2016, especially when the fact of unauthorised connected load at the time of inspection was admitted and there was material to show an increased usage of electricity, over and above the contract demand, during the 24 month period prior to the date of inspection.

5. It is the above order of the Appellate Authority that the appellant impugned in his writ petition, primarily on the ground that, in a statutory appeal preferred by him, and in the absence of any challenge by the KSEB to the order of the assessing authority, he could not have been prejudiced to a greater extent than what he was prior to the filing of his appeal before the Appellate Authority. The said argument did not, however, find favour with the learned Single Judge who considered the writ petition, and the petition was dismissed by holding that the Appellate Authority under the Electricity Act had the power to correct erroneous demands, even in an appeal preferred by the consumer, if the factual situation warranted it. While the appellant impugns the judgment of the learned Single Judge in the writ appeal, the KSEB filed the writ petition impugning th