Unauthorized use of electricity must be assessed based on the applicable tariff for the higher category of service used, not the consumer's category.

J U D G M E N T

The Kerala State Electricity Board and its official challenge Ext.P6 order passed by the Kerala State Electricity Appellate Authority in Appeal No.280 of 2023, filed by the 1^st respondent herein against the final assessment order made under Section 126 of the Electricity Act , 2003.

2. The 1^st respondent herein, the consumer, was granted a three-phase electricity connection bearing Consumer No.1145590013685 under LT VIIA, commercial tariff with a sanctioned connected load of 6990 Watts. On a surprise inspection of the premises on 05.04.2023, an unauthorised extension of supply to a nearby HT premises was detected, whereby a load of 24210 Watts was used for construction activities for a period of 12 months under the HT II B tariff, leading to a provisional assessment order, which was confirmed after hearing the consumer, through the final assessment order issued on 20.06.2023 for Rs.2,05,104/-, but modifying the assessment period as four months.

3. Aggrieved by the final assessment order, the consumer filed the above appeal, which was allowed by the appellate authority through the impugned order.

4. The appellate authority found that the existence of the unauthorised extension in the premises has been conclusively established in the site mahassar and therefore, the only point to be decided was whether the unauthorised extension can be reckoned as unauthorised use of electricity. The appellate authority answered the same by holding that the unauthorised extension shall also be considered as unauthorised use of electricity, which shall be assessed under Section 126 of the Act.

5. However it found that since LT service connection was availed by the consumer for commercial purposes and the same was extended to another premises and used for the purpose other than for which the usage of electricity was authorised, the final assessment made at twice the rate under HT II B tariff for both the fixed charges and the energy charges for 3528 units for a period of 7 months was interfered with holding that the Board had wrongly assessed the consumer under HT II B tariff, as the same ought to have been based on the applicable tariff.

6. The appellate authority further found that the assessment period should be 5 days from 01.04.2023 to 05.04.2023 and directed as follows:

“1 The final assessment order No. DB43/KDA/Final Assessment/SEC SQUAD/23- 24/54 Dated 20 06.2023 for Rs 2,05,104/-issued by the respondent is hereby set aside.

2. The Assessing Officer is directed to issue revised assessment within 15 days at twice the rate for both fixed charges and energy charges under LT VIF tariff on account of unauthonzed use of 24210 watts and a total consumption of 484 units for a period of 5 days from 01.04 2023 to 05.04.2023, in the light of relevant tariff order and Section 126 of the 2003 Act.

3. Excess amount remitted if any, shall be refunded with interest as per the regulation 158 (18) of Kerala Electricity Supply Code

2014.”

7. Heard the learned Standing Counsel for the Kerala State Electricity Board and the learned counsel for the consumer.

8. It is to be noticed that the appellate authority had clearly found that there was an unauthorised extension and that the same has to be assessed under Section 126 of the Act. The allegation was that the petitioner used the supply granted under the LT tariff to the HT tariff. However, the computation was directed to be made under the LT tariff and not under the higher tariff, for which the unauthorised use was utilised.

9. A Division Bench of this Court in Sulabha Marketing (P)

Ltd. vs. Kerala State Electricity Board and Another [2017 SCC online Kerala 2296] held that in