Anil K. Narendran, J.

1. These writ petitions and writ appeals came up for consideration before this Bench based on an order of reference made by a learned Single Judge dated 17.8.2015 in W.P.(C)Nos.2159 of 2009, 6993 of 2013, 13322 of 2013 and 22644 of 2015 observing that an authoritative pronouncement on the quantification of penalty under Section 126(6) of the Electricity Act, 2003 is essential since innumerable cases crop up everyday challenging the orders imposing penalty involving excess load. Based on the order of reference, the above said writ petitions and other tagged matters, i.e., W.P.(C) Nos.31025 of 2008, 12383 of 2016, 3206 of 2016, 3842 of 2016, W.A.No.1705 of 2012 and W.A.No.422 of 2014 were placed before us for hearing, by the orders of the Honble Chief Justice. The common issue in these cases relates to the assessment under Section 126(1) of the Electricity Act, 2003 read with Section 126(6) of the said Act of a consumer indulging in unauthorised use of electricity.

2. We heard the learned counsel for the petitioners/appellants in the respective writ petitions/writ appeals and also the learned Senior Counsel for the respondents/Kerala State Electricity Board at length.

3. Brief facts of the cases are stated hereunder;

3.1. W.P.(C)No.2159 of 2009:- The 2nd petitioner is a consumer under Electrical Section, Chottanikkara with Consumer No.11661 under LT-VIIA commercial tariff, with a sanctioned connected load of 29KW, for conducting a rest house in the premises of Chottanikkara Temple, who was assessed for unauthorised use of electricity, based on a surprise inspection conducted in the said premises on 13.5.2008, by the Regional Audit Officer of the Kerala State Electricity Board along with the officials of Electrical Section, Chottanikkara.

3.2. W.P.(C)No.6993 of 2013:- The petitioner, a partnership firm running an industrial unit at Kaniyarcode, is a consumer under Electrical Section, Thiruvilwamala with Consumer No.1917 under LT-IV industrial tariff, with a sanctioned connected load of 74.821KW, for conducting a rubber retreading unit, which was assessed for unauthorised use of electricity, based on an inspection conducted in the said premises on 13.9.2012, by the Anti Power Power Theft Squad along with the officials of Electrical Section, Thiruvilwamala.

3.3. W.P.(C)No.13322 of 2013:- This writ petition is filed by the petitioner in W.P.(C)No.6993 of 2013, seeking for an order to quash Ext.P10 communication dated 18.4.2013 of the Deputy Chief Engineer, Electrical Circle, Thrissur by which it was informed that, for considering the application for additional power requirement the petitioner has to remit the arrears under LT connection, i.e., the arrears covered by Ext.P5 demand notice dated 1.3.2013 issued based on Ext.P4 order dated 16.2.2013, which is the subject matter in W.P.(C)No.6993 of 2013 pending before this Court.

3.4. W.P.(C)No.22644 of 2015:- The petitioner is a consumer under Electrical Section, Eroor Road with Consumer No.21056 under LTVIIA commercial tariff, with a sanctioned connected load of 57KW, for conducting a hotel. On 19.5.2010, the petitioner made an application for additional power requirement of 30KW. Based on the said application, the petitioner was issued with a communication dated 20.11.2010 requiring him to remit a sum of 2,71,723/- in order to install a 100KVA transformer. However, the petitioner could not remit the said amount. On 7.1.2011, as instructed by the Regional Audit Officer, the officials of Electrical Section, Eroor Road conducted an inspection in the petitioners premises, based on which he was assessed for unauthorised use of electricity.

3.5. W.P.(C)No.31025 of 2008:- The petitioner is a consumer under Electrical Section, Ettumanoor with Consumer No.19468 under LT-VIIA commercial tariff, with a sanctioned connected load of 9KW, for conducting a super market, which was assessed for unauthorised use of electricity, based on a surprise inspection conducted in the said premises on 22.8.2008, by the Regional Audit Officer of the KSEB along with the officials of Electrical Section, Ettumanoor.

3.6. W.P.(C)No.3206/2016:- The petitioner is a consumer under Electrical Section (Central), Ernakulam with Consumer No.9870 under LT-VIIA commercial tariff, with a sanctioned connected load of 8KW, for conducting a commercial establishment, who was assessed for unauthorised use of electricity, based on an inspection conducted in the said premises on 6.7.2012, by the Anti Power Power Theft Squad along with the officials of Electrical Section (Central), Ernakulam.

3.7. W.P.(C)No.3842 of 2016:- The petitioner is a consumer under Electrical Section, Valapattanam with Consumer No.1963 under LT-IV industrial tariff, with a sanctioned connected load of 82.185KW, for conducting a plywood manufacturing unit, which was assessed for unauthorised use of electricity, based on an inspection conducted in the said premises on 12.9.2013, by the Anti Power Theft Squad along with the officials of Electrical Section, Valapattanam.

3.8. W.P.(C)No.12383 of 2016:- The petitioner, who is a builder and developer of residential and commercial buildings, is a consumer under Electrical Section, Thrikkakkara with Consumer Nos.34956 and 34957 under LT-VIIA commercial tariff, with a sanctioned connected load of 5.8KW and 82.21KW respectively, who was assessed for unauthorised use of electricity, based on an inspection conducted in the said premises on 16.8.2011, by the Section Squad of Electrical Section, Thrikkakkara.

3.9. W.A.No.1705 of 2012:- This Writ Appeal arises out of the judgment of the learned Single Judge of this Court dated 28.5.2012 in W.P.(C)No.257 of 2012. The appellant/petitioner is a consumer under Electrical Section, Payangadi with Consumer Nos.3754 under LT-VIA tariff with a sanctioned connected load of 37KW, for running a self-financing educational institution, which was assessed for unauthorised use of electricity, based on an inspection conducted in the said premises on 31.5.2011, by the Assistant Audit Officer in charge of the Regional Audit Officer, along with the officials of Electrical Section, Payangadi.

3.10. W.A.No.422 of 2014:- This Writ Appeal filed by the Kerala State Electricity Board arises out of the judgment of the learned Single Judge dated 29.6.2012 in W.P.(C)No. 1813 of 2006. The respondent/petitioner, who is a consumer under Electrical Section, Kottayam East with Consumer No.3978 under LT-VIIA commercial tariff with a sanctioned connected load of 15KW, for conducting a hotel, was assessed for unauthorised use of electricity, based on an inspection conducted in the said premises on 18.7.2000, by the Anti-Power Theft Squad.

4. Reference Order:- An order of reference dated 17.8.2015 was made by a learned Single Judge of this Court in W.P.(C).Nos.2159 of 2009, 6993 of 2013, 13322 of 2013 and 22644 of 2015, observing that an authoritative pronouncement on the quantification of penalty under Section 126(6) of the Electricity Act, 2003 is essential since innumerable cases crop up everyday challenging the orders imposing penalty involving excess load falling under Explanation (b)(ii) to Section 126 and unauthorised use of electricity falling under Explanation(b)(iv) to Section 126 of the said Act, in which cases the energy charges are already metered and paid by the consumer. The learned Single Judge observed that, a different yardstick may have to be applied in cases falling under Explanation (b)(i), (iii) and (v) to Section 126 of thesince energy charges are not metered. Based on the order of reference these matters were placed before us by the orders of the Honble Chief Justice.

5. The Electricity Act, 2003 is enacted by the Parliament in order to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to the development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, etc. and for matters connected therewith or incidental thereto. Till the enactment of the Electricity Act, 2003, supply of electricity in India was governed by the provisions under the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998.

5.1. The Indian Electricity Act, 1910:- The Indian Electricity Act, 1910 (for brevity, Electricity Act, 1910) created the basic frame work for electric supply industry in India and the legal frame work of laying of transmission lines and other works relating to supply of electricity. As per Section 39 of the said Act, which deals with theft of energy, whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than 1,000/- rupees, or with both; and if it is proved that any artificial means or means not authorised by the licensee exists for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer.

5.2. The Electricity (Supply) Act, 1948:- The Electricity (Supply) Act, 1948 (for brevity, Supply Act, 1948) provided for creation of the State Electricity Board, which has the responsibility of supplying electricity in the State. As per Section 79 of the said Act, which deals with the power to make regulations, the Board may by notification in the Official Gazette, make regulations not inconsistent with the provisions of the said Act and the rules made thereunder to provide for all or any of the matters enumerated in clauses (a) to (k) of Section 79. Section 79(j) of theempowers the Board to make regulations to provide for the principles governing supply of electricity by the Board to persons other than licensees under Section 49 of the said Act.

5.3. Conditions of Supply of Electrical Energy 1972:- In exercise of the powers conferred by Section 79(j) of the Supply Act, 1948, the Kerala State Electricity Board (for brevity, Board) issued regulations with effect from 1.10.1972, namely, the Conditions of Supply of Electrical Energy 1972 (for brevity, Conditions of Supply, 1972), to provide for the principles governing supply of electricity by the Board to persons other than licensees under Section 49 of the said Act. Regulation 37 of Conditions of Supply, 1972 deals with prejudicial use of supply. Regulation 37(d) provides that, if energy supplied for a specific purpose under a particular tariff is used without the Boards knowledge and approval for different purpose not contemplated in the contract for supply and for which higher tariff is applicable, coming under misuse of energy within the meaning of the Electricity Act, 1910, then current consumption bills already rendered for the service shall be revised charging the appropriate higher tariff for the previous six months form the date of detection of misuse unless there are convincing reasons for adopting different periods. The imposition of higher rate will not relieve the consumer from any penalties imposed by law. Regulation 37(e) provides further that, if at any time the consumer exceeds his contracted load without prior permission of the Board, the Board may levy a surcharge on the bill amount in addition to reserving the right to disconnect the supply and recover the damages caused, if any, on his exceeding the contracted load. Regulation 38, which deals with theft of energy provides that, if at any time a consumer is found to misuse energy supplied to him or to make improper use of energy or dishonestly abstract, consume or use any energy in any manner prejudicial to the Board, it shall, without prejudice to the rights of the Board or the provisions of the Electricity Act, 1910, disconnect the supply without any notice.

5.4. Conditions of Supply of Electrical Energy, 1990:- In exercise of the powers conferred by Section 79(j) of the Supply Act, 1948, the Board issued a revised regulation with effect from 1.1.1990, namely, the Conditions of Supply of Electrical Energy, 1990 (for brevity, Conditions of Supply, 1990), to provide for revised principles governing the supply of electricity by the Board to persons other than licensees under Section 49 of the said Act. Regulation 42 of the Conditions of Supply, 1990 deals with misuse of energy. Regulation 42 (d) provides that, if the consumer exceeds the contracted load without prior permission of the Board or energy supplied for a specific purpose under a particular tariff is used without the Boards knowledge and approval for a different purpose not contemplated in the contract for supply and for which higher tariff is applicable, coming under misuse of energy within the meaning of the Electricity Act, 1910, misuse of energy will be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse unless there are convincing reasons for adopting different periods and the supply will be disconnected without notice. The imposition of higher rate will not relieve the consumer from any penalties imposed by law. Regulation 42(e) provides further that, if at any time the consumer exceeds his contracted load without prior permission of the Board, the Board shall have the right to disconnect the supply and recover the damages caused, if any, from such consumer on account of the consumer exceeding the contract load. Regulation 43, which deals with theft of energy provides that, if at any time a consumer is found to misuse energy supplied to him or to make improper use of energy or dishonestly abstract, consume or use any energy in any manner prejudicial to the Board, the Board shall, without prejudice to its rights or the provisions of the Electricity Act, 1910, disconnect the supply without any notice. The theft of energy shall also be billed at three times the rate applicable in the respective tariff for a period of six months from the date of detection of theft unless there are convincing reasons for adopting a different period.

5.5. Vide Circular No.TCI/9314/88 dated 31.10.1992, the Board clarified that, Regulation 42(d) of the Conditions of Supply, 1990 is applicable to unauthorised additional load for the same tariff also and that, the penal charges envisaged in the above regulation shall be applicable to energy charges as well as fixed charges. However, the Full Board of the Kerala State Electricity Board, which met on 27.7.2002 decided to modify Regulation 42(d) of the Conditions of Supply, 1990 for relaxation of penalty in the case of unauthorised additional loads in the manner given below;

(i) In the case of LT domestic consumers, the penalty for unauthorised additional load shall be 50/- per KW per month or part thereof for the additional load till the said unauthorised additional load is removed or regularised as per rules.

(ii) In the case of LT customers other than domestic consumers, the penalty for unauthorised additional load shall be levied at the rate of twice the fixed charges per KW of additional load per month or part thereof till the said unauthorised additional load is removed or regularised as per rules.

(iii) In the case of HT and EHT consumers the penalty for unauthorised additional load shall be levied at the rate of twice the demand charges per KVA for the additional load till the said unauthorised additional load is removed or regularised as per rules.

5.6. A Full Bench of this Court in the decision in Kerala State Electricity Board v. Manglay Timber and Furniture (W.A.No.1614 of 2007 and connected cases, dated 29.10.2014) held that, Section 79 of the Electricity (Supply) Act, 1948 does not empower the Board to make the regulations retrospectively and as such, the Full Board decision dated 27.7.2002 modifying Regulation 42(d) of the Conditions of Supply, 1990 for relaxation of penalty in the case of unauthorised additional loads operates only prospectively from the date on which the Board Order incorporating that decision is issued.

5.7. The Electricity Act, 2003:- The Electricity Act, 2003 which consolidates the laws relating to generation, transmission, distribution, trading and use of electricity, aims development of electricity industry in India, protecting interest of consumers, rationalisation of electricity tariff, etc. Section 45 of the said Act deals with the power to recover charges. As per Section 45(1), subject to the provisions of Section 45, the prices to be charged by a distribution licensee for the supply of electricity by him in pursuance of Section 43 shall be in accordance with such tariffs fixed from time to time and conditions of his licence. Section 45(2) provides that, the charges for electricity supplied by a distribution licensee shall be fixed in accordance with the methods and the principles as may be specified by the concerned State Commission; and published in such manner so as to give adequate publicity for such charges and prices. Section 45(3) provides further that, the charges for electricity supplied by a distribution licensee may include a fixed charge in addition to the charge for the actual electricity supplied; and a rent or other charges in respect of any electric meter or electrical plant provided by the distribution licensee. Going by Section 45(4), subject to the provisions of Section 62, in fixing charges under this Section a distribution licensee shall not show undue preference to any person or class of persons or discrimination against any person or class of persons. As per Section 45(5), the charges fixed by the distribution licensee shall be in accordance with the provisions of the and the regulations made in this behalf by the concerned State Commission. 5.8. Section 126 of the Electricity Act, 2003 deals with assessment. Section 126, as amended by the Electricity (Amendment) Act, 2007 reads thus;

126. Assessment.- (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under subsection (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:

(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.

(6) The assessment under this section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).

Explanation.- For the purposes of this Section,-

(a) assessing officer means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;

(b) unauthorised use of electricity means the usage of electricity (i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised; or

(v) for the premises or areas other than those for which the supply of electricity was authorised.

5.9. As per Section 126(1), if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. Section 126(5) provides that, if the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. Section 126(6) provides further that, the assessment under Section 126 shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in Section 126(5).

5.10. The term unauthorised use of electricity for the purpose of assessment under Section 126 is defined in Explanation (b) to Section 126. Explanation (b) defines the term unauthorised use of electricity to mean the usage of electricity by any artificial means; or by means not authorised by the concerned person or authority or licensee; or through a tampered meter; or for the purpose other than for which the usage of electricity was authorised; or for the premises or areas other than those for which the supply of electricity was authorised.

5.11. Section 126(5) of the Electricity Act, 2003, prior to its substitution by the Electricity (Amendment) Act, 2007 (with effect from 15.6.2007) provided that, if the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in the case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place. By the Amendment Act, 2007, the words one and a half times in Section 126(6) was substituted with the word twice. Further, sub-clause (iv) to Explanation (b) was substituted as for the purpose other than for which the usage of electricity was authorised; or instead of for the purpose other than for which the usage of electricity was authorised. A new sub-clause, i.e., sub-clause (v) to Explanation (b) was also inserted by the Amendment Act, 2007.

5.12. The KSEB Terms and Conditions of Supply, 2005:- The Kerala State Electricity Board Terms and Conditions of Supply, 2005 (for brevity, Conditions of Supply, 2005) which came into force with effect from 1.2.2006, deals with the terms and conditions of supply applicable to all consumers under the Board, excluding licensees. Regulation 50 of Conditions of Supply, 2005 deals with misuse of energy. As per Regulation 50(1), if on an inspection of any place or premises or after inspection of the equipment, gadgets, machines, devices found connected or used or after inspection of records maintained by any person, the Boards officer not below the rank of Assistant Engineer (assessing officer) comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use as per Section 126 of Electricity Act, 2003. Regulation 50(5) provides that, if the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person/occupier or possessor of such premises or place. Regulation 50(6) provides further that, the assessment under Regulation 50 shall be made at a rate equal to one and half times the tariff applicable for the relevant category of services specified in Regulation 50(5).

5.13. Regulation 51 of the Conditions of Supply, 2005, which deals with unauthorised load provides that, where a Low Tension consumer exceeds the connected load and/or resorts to unauthorised additional load and if the connected load exceeds 100 KVA, the unauthorised additional load shall be disconnected by the consumer within twenty-four hours of detection of the unauthorised load by the Boards officers or take action to regularise the unauthorised additional load. If he fails to disconnect the unauthorised load within the time stipulated, the power supply to the premises shall be disconnected after the expiry of twenty-four hours. A notice to this effect shall be issued to the consumer by the Boards officer immediately on detection of the unauthorised additional load. Regulation 51(1) provides further that, the unauthorised additional load in case of Low Tension/High Tension/Extra High Tension consumers shall be penalised as per Regulation 50(5) and (6) above. Going by Regulation 51(2), the penalty for unauthorised additional load shall be levied till the said unauthorised additional load is removed or regularised as per rules. If the consumer fails to pay the bill amount, the service shall be disconnected without further notice. It shall be reconnected only after payment of penalty and other charges, if any, as per rules and removal/regularisation of the unauthorised additional load by the consumer.

5.14. As per Regulation 51(4), in case of Low Tension consumers whose connected load does not exceed 100KVA but who have exceeded the contracted load by 10% by adding unauthorised additional load, the procedure mentioned in clause 50(1) shall be applicable. The unauthorised load should be got regularised by the consumer within a period of three months on application to the Assistant Executive Engineer and after payment of additional security deposit and other charges as per rules. The regularisation shall be given effect from the date of collection of additional security deposit and other charges, if any, as per rules. The Assistant Executive Engineer shall issue proceedings to this effect and the penal charges as mentioned in clause 50(1) shall be paid till the date of payment of additional security deposit.

5.15. Board Order dated 7.2.2008:- Regarding method of penalisation while assessment of electricity charges, the Board has issued B.O.(FM)No.368/2008(DPC-I)/C-Gl.182/2007 dated 7.2.2008. As discernible from the said Board Order, the Executive Engineer, Electrical Division, Ponkunnam sought clarification regarding the methodology to be adopted while issuing penal bills in the case of additional load. The Kerala State Electricity Regulatory Commission (for brevity, Regulatory Commission) has clarified that, penalty rate is applicable to both fixed and energy charges for the unauthorised use of electricity as per Section 126(6) of the Electricity Act, 2003, which states that the assessment under the said Section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in Section 126(5). As per Section 126(5), if the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place, cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. Accordingly, by Board Order dated 7.2.2008, it was ordered that the field officers shall strictly follow the provisions of Section 126(5) and (6) of the Electricity Act, 2003, as amended by the Electricity (Amendment) Act, 2007, i.e., two times the respective tariff for the entire period, and in case the said period cannot be ascertained for a period of twelve months, for assessing penalty in the case of misuse of energy including unauthorised additional load, unauthorised extension and meter tampering cases detected. It was also made clear that, the penalty rate shall be applicable to both fixed and energy charges for the unauthorised use. Penalty charges for current charges shall be levied for proportionate energy charge and normal current charge collected shall be deducted. The Board Order dated 7.2.2008 was made applicable with effect from 15.6.2007.

5.16. Ministry of Power letter dated 12.11.2007:- Regarding the applicability of provisions of Sections 126 and 135 of the Electricity Act, 2003, the Government of India, Ministry of Power vide letter No.42/2/2005-R&R dated 12.11.2007 clarified that, the key difference between the two provisions of Section 126 and Section 135 is that, dishonest intention as mentioned in Section 135 is the necessary ingredient for the offence of theft of electricity. For prosecuting someone under Section 135, a complaint or a report by Police to the court is necessary under Section 151 of the. On the other hand, Section 126 of theis for assessment of the charges for unauthorised use of electricity. This provision would also be applicable to those cases where action is taken for offences under Section 135 and the situation of alleged commitment of offence is covered under the provisions of Section 126.

5.17. The Kerala Electricity Supply Code, 2014:- The Regulatory Commission, in exercise of its powers under Sections 30 and 181 of the Electricity Act, 2003 made the Kerala Electricity Supply Code, 2014 (for brevity, Supply Code, 2014), which came into force with effect from 1.4.2014. Though the term tariff is not defined under the Supply Code, 2014, Regulation 2(72) define tariff order in respect of a licensee to mean the order issued from time to time by the Kerala State Electricity Regulatory Commission, stipulating the rates to be charged by the said licensee from various categories of consumers for supply of electrical energy and for other services. Similarly, Regulation 2(73) defines tariff schedule to mean the schedule of charges for supply of electricity and for other services as approved by the Commission from time to time and published by the licensee.

5.18. Regulation 2(27) of the Supply Code, 2014 defines contracted connected load to mean the connected load installed by the consumer at the time of executing the service connection agreement and recorded in KW/KVA in the schedule to the agreement or the connected load duly revised thereafter. Regulation 2(78) defines unauthorised connected load to mean the connected load in excess of the contract connected load and Regulation 2(79) defines unauthorised use of electricity to mean the usage of electricity as explained in Section 126 of the Electricity Act.

5.19. Regulation 31 of the Supply Code, 2014 deals with recovery of charges for supply of electricity. As per Regulation 31(1), subject to the provisions of the Supply Code, the charges to be levied on the consumer by the distribution licensee for the supply of electricity in pursuance of the provisions of the, shall be in accordance with the tariff fixed by the Commission from time to time and the conditions of the licence. Regulation 31(2) provides that, the charges of electricity supplied by the licensee shall be fixed in accordance with the methods and principles as may be specified by the Commission; and published in such manner so as to give adequate publicity for such charges and prices.

5.20. Chapter IX of the Supply Code, 2014 deals with theft, unauthorised use and other irregularities. Regulation 153 deals with estimation and regularisation of unauthorised additional load. As per Regulation 153(1), if it is detected, on inspection, that additional load in excess of the sanctioned load has been connected to the system without due sanction from the licensee, further action shall be taken in accordance with Regulations 153(2) to (15). Regulations 153(2) provides that, the difference between the total connected load in the premises of the consumer at the time of inspection and the sanctioned load of the consumer shall be reckoned as unauthorised additional load. Regulations 153(3) provides the manner in which connected load shall be determined.

5.21. As per Regulation 153(4)(a), if the additional load in the case of domestic consumers is of and below twenty percent of the sanctioned load it shall not be reckoned as unauthorised additional load. As per Regulation 153(4)(b), if the additional load in the case of other consumers is of and below ten percent of the sanctioned load, it shall not be reckoned as unauthorised additional load. Regulation 153(4)(c) provides that, the licensee may, suo motu or on application from the consumer, regularise such additional load mentioned in clause (a) and clause (b) of Regulation 153(4).

5.22. Regulation 153(5) provides that, when the load in excess of sanctioned load exceeds the limit as provided in Regulation 153(4), the entire load in excess of the sanctioned load shall be treated as unauthorised additional load, if express sanction or deemed sanction under Regulation 153(4)(c) has not been obtained for it. Regulation 153 (6) provides further that, in the case of consumers billed under demand based tariff, the total load declared in the test cum completion report of the installation of the consumer, submitted at the time of availing connection or the load mentioned in the energisation approval granted by the Electrical Inspector or the load at the time of revising contract demand or revising the connected load may be taken as the sanctioned connected load.

5.23. Regulation 153(9) and (10) deal with regularisation of unauthorised additional load. Regulation 153(12) provides that, in case such regularisation of unauthorised connected load or enhancement of contract demand will necessitate upgradation of the existing distribution system or enhancement of voltage level of supply, the licensee shall direct the consumer to disconnect forthwith such additional load and to restrict the contract demand within the agreed limit and the consumer shall comply with such direction, failing which the supply of electricity to the consumer shall be disconnected by the licensee. Regulation 153(13) provides further that, the regularisation of unauthorised additional load as per Regulation 153(9) and (10) shall be subject to realisation of a fee at the rates notified by the Commission in Schedule 1 of the Supply Code, 2014.

5.24. Regulation 153(14) provides that, the provisions relating to unauthorised additional load in Regulation 153(1) to (13) shall not be applicable to any domestic consumer if his total connected load including the additional load detected is of and below 10KW. Regulation 153(15) provides further that, unauthorised additional load in the same premises and under same tariff shall not be reckoned as unauthorised use of electricity, except in the case of consumers billed on the basis of connected load.

5.25. Regulation 154 of the Supply Code, 2014 deals with unauthorised extension. As per Regulation 154(1), extension of supply of electricity shall be reckoned as unauthorised if (i) the extension is beyond the limits of the premises; or (ii) the extension is for a purpose other than for which the supply is authorised whether or not such extension is within or outside the premises. Going by the proviso to Regulation 154(1), in the case of domestic consumers, temporary extension within the premises for non-domestic purposes shall not be reckoned as unauthorised extension if the load of non-domestic purpose is not more than twenty percent of the sanctioned load.

5.26. Regulation 154(4) provides that, extension of electric supply through the meter to adjacent rooms or toilets or sheds or such other structures within the premises or to portable electrical equipment for the use in the same premises and for the same sanctioned purpose, shall not be treated as unauthorised extension. Regulation 154(5) provides further that, consumption of electricity on account of the unauthorised extension shall be considered as unauthorised use of electricity and shall be assessed under Section 126 of the Electricity Act, 2003.

5.27. Regulation 155 of the Conditions of Supply, 2014 deals with provisional assessment under Section 126 of the Electricity Act, 2003. As per Regulation 155(1), the assessment of amount for unauthorised use of electricity under Section 126 of the Electricity Act shall be done in accordance with the procedure specified in Regulation 155 (2) to (12). Regulation 155(6) provides that, an order of provisional assessment comprising the electricity charges payable by the consumer or such person benefited by the unauthorised use shall be prepared by the assessing officer as per Section 126 of the Electricity Act at a rate which is two times the tariff rate applicable for the purpose for which electricity is found to be used without authorisation. Regulation 155(7) provides further that, if the period of unauthorised use of electricity can be conclusively established, the assessment shall be done for the entire period for which the unauthorised use has taken place and if the period of such unauthorised use is not known or cannot be conclusively established, the period of assessment shall be limited to twelve months immediately preceding the date of inspection.

5.28. Regulation 155 of the Conditions of Supply, 2014 deals with issuance of final order under Section 126 of the Electricity Act, 2003. As per Regulation 155(1), the assessing officer shall take a final decision considering all the facts and evidence and shall, within thirty days from the date of provisional assessment order, issue the final order.

5.29. Regulation 159 of the Conditions of Supply, 2014 deals with prosecution for theft of electricity. Regulation 159(1) provides that, the prosecution for theft of electricity under Section 135 of the Electricity Act, 2003 shall be initiated only in cases where dishonest intention is evident from the relevant facts, records and other evidence of the case.

6. The first issue that arises for consideration is as to whether the presence of the assessing officer at the time of inspection and detection of unauthorised use of electricity in the premises of a consumer is a mandatory requirement for initiating assessment proceedings under Section 126(1) of the.

6.1. As per Section 126(1), if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. Explanation (a) to Section 126 of thedefines assessing officer to mean an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government. Section 126 provides a detailed procedure for assessment to be adopted by the assessing officer.

6.2. In U.P. Power Corporation Ltd. v. Anis Ahmad (2013 (8) SCC 491 [LQ/SC/2013/645] ) the Apex Court held that, the final decision by an assessing officer on the assessment of unauthorised use of electricity, after notice of provisional assessment to the person indulged in unauthorised use of electricity, is a quasi-judicial decision.

6.3. In Executive Engineer, Southern Electricity Supply Company of Orissa Ltd. (SOUTHCO) v. Seetharam Rice Mill (2012 (2) SCC 108 [LQ/SC/2011/1406] ) the Apex Court, while dealing with the scope of Section 126 of the Act, enumerated various steps to be taken by the assessing officer while assessing unauthorised use of electricity. The first step enumerated in Para.36 of the said decision is that, an assessing officer is to conduct inspection of a place or premises and the equipments, gadgets, machines, devices found connected or used in such place. In Para.26 of the said judgment, the Apex Court has also stated that, the assessment proceedings would commence with the inspection of the premises by the assessing officer and recording the finding that such consumer is indulging in unauthorised use of electricity.

6.4. After noticing that, the question as to whether presence of the assessing officer is mandatory at the time of inspection was not in issue before the Apex Court in Seetharam Rice Mills case (supra), a Division Bench of the Calcutta High Court in CESC Ltd. v. ABDOS Trading Co. Pvt. Ltd. (AIR 2013 Cal. 76) observed that, a plain reading of Section 126 of thesuggests that the presence of the assessing officer at the time of inspection is mandatory. As discernible from the said judgment, the Division Bench did not express any further opinion in the matter as it was not called upon to decide that issue.

6.5. In Syriach Kurian v. Union of India and others (2014 (3) KLT 557 [LQ/KerHC/2014/40] ) a learned Judge of this Court, after referring to the judgment of the Apex Court in Seetharam Rice Mills case (supra) and the judgment of the Calcutta High Court in CESC Ltd.s case (supra) held that, the provisions contained in Section 126(1) of thecannot be construed in any manner narrowing down its scope against initiating assessment proceedings based on conclusion arrived depending on materials collected in an inspection conducted by any competent authority other than the assessing officer.

6.6. In Syriach Kurians case (supra) this Court held that, as per Section 126(1) of the Act, for making a provisional assessment to the best of his judgment with respect to the electricity charges payable, the assessing officer should come to a conclusion that the person against whom such provisional assessment is proposed was indulging in unauthorised use of electricity. The Statute provides that such a conclusion can be arrived on the basis of inspection of any place or premise or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of the records maintained by such persons.

6.7. In Syriach Kurians case (supra) this Court noticed that, nowhere it is mentioned in Section 126(1) that, such inspection should be conducted by the assessing officer himself. This Court observed that, insistence that presence of the assessing officer is mandatory at the time of inspection, will create procedural hurdle in the matter of detection of theft or unauthorised usage of energy and assessment of penalty. If such a narrow construction is adopted with respect to Section 126(1) of the Act, any culprit who commits theft or unauthorised use or misuse of energy can escape from the liability of penalty, because he can remove or dismantle any device or apparatus from the premises through which theft or misuse of energy is committed, before the assessing officer could conduct an inspection on the basis of any information.

6.8. In V. Jenin Mon v. Kerala State Electricity Board Ltd. and others (CDJ 2016 Ker HC 800) we have concurred with the view expressed by the learned Single Judge in Syriach Kurians case (supra).

6.9. When assessment proceedings are initiated on the basis of the inspection report submitted by a team of officers including authorities who are higher in rank than the assessing officer, there is no illegality or irregularity in the assessing officer arriving at a conclusion regarding indulgence of unauthorised use of electricity based on such report, and finalising the provisional assessment so made, after affording the consumer an opportunity to file objections, if any, against such provisional assessment, and after affording such consumer a reasonable opportunity of being heard. Therefore, the provisions contained in Section 126(1) of thecannot be construed in any manner narrowing down its scope against initiating assessment proceedings based on conclusion arrived depending on materials collected on an inspection conducted by any competent authority other than the assessing officer. In that view of the matter, we hold that, the presence of the assessing officer at the time of inspection and detection of unauthorised use of electricity in the premises of a consumer is not a mandatory requirement for initiating assessment proceedings under Section 126(1) of the.

7. In Executive Engineer, Southern Electricity Supply Company of Orissa Ltd. (SOUTHCO) v. Seetharam Rice Mill (2012 (2) SCC 108 [LQ/SC/2011/1406] ) the first question that had come up for consideration before the Apex Court was wherever the consumer consumes electricity in excess of the maximum of the contracted load, would the provisions of Section 126 of the Electricity Act, 2003 be attracted on its true scope and interpretation. Before the Apex Court, it was contended that, the case of a consumer consuming electricity in excess of the maximum of the contracted load does not fall within the mischief covered under Section 126 of the said Act. At best, the demand could be raised under Regulation 82 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Regulations, 2004. But recourse to the provisions of Section 126 of thewas impermissible in law.

7.1. The Apex Court noticed that, from the objects and reasons of the Electricity Act, 2003 it is clear that revenue focus was one of the principal considerations that weighed with the Legislature while enacting the said Act. The regulatory regime under the said Act empowers the Regulatory Commission to frame the tariff, which shall be the very basis for raising a demand upon a consumer, depending upon the category to which such consumer belongs and the purpose for which the power is sanctioned to such consumer. Para.16 of the judgment reads thus;

16. First and foremost, we have to examine how provisions like Section 126 of the 2003 Act should be construed. From the objects and reasons stated by us in the beginning of this judgment, it is clear that revenue focus was one of the principal considerations that weighed with the Legislature while enacting this law. The regulatory regime under the 2003 Act empowers the Commission to frame the tariff, which shall be the very basis for raising a demand upon a consumer, depending upon the category to which such consumer belongs and the purpose for which the power is sanctioned to such consumer. We are not prepared to accept the contention on behalf of the respondent that the provisions of Section 126 of the 2003 Act have to be given a strict and textual construction to the extent that they have to be read exhaustively in absolute terms. This is a legislation which establishes a regulatory regime for the generation and distribution of power, as well as deals with serious fiscal repercussions of this entire regime. In our considered view, the two maxims which should be applied for interpretation of such statutes are ex visceribus actus (construction of the act as a whole) and ut res magis valeat quam pereat (it is better to validate a thing than to invalidate it). It is a settled cannon of interpretative jurisprudence that the statute should be read as a whole. In other words, its different provisions may have to be construed together to make consistent construction of the whole statute relating to the subject matter. A construction which will improve the workability of the statute, to be more effective and purposive, should be preferred to any other interpretation which may lead to undesirable results.

7.2. On the interpretation of Section 126 of the Act, the Apex Court held that, the provisions of Section 126, read with Section 127 of the Act, in fact, becomes a code in itself. It specifically provides the method of computation of the amount that a consumer would be liable to pay for excessive consumption of the electricity and for the manner of conducting assessment proceedings. In other words, Section 126 of thehas a purpose to achieve, i.e., to put an implied restriction on such unauthorised consumption of electricity. The Apex Court held further that, Section 126 embodies a complete process for assessment, determination and passing of a demand order. This defined legislative purpose cannot be permitted to be frustrated by interpreting a provision in a manner not intended in law. The Court would have to apply the principle of purposive interpretation in preference to textual interpretation of the provisions of Section 126 of the. Paras.18 and 19 of the judgment read thus;

18. It is true that fiscal and penal laws are normally construed strictly but this rule is not free of exceptions. In given situations, this Court may, even in relation to penal statutes, decide that any narrow and pedantic, literal and lexical construction may not be given effect to, as the law would have to be interpreted having regard to the subject matter of the offence and the object that the law seeks to achieve. The provisions of Section 126, read with Section 127 of the 2003 Act, in fact, becomes a code in itself. Right from the initiation of the proceedings by conducting an inspection, to the right to file an appeal before the appellate authority, all matters are squarely covered under these provisions. It specifically provides the method of computation of the amount that a consumer would be liable to pay for excessive consumption of the electricity and for the manner of conducting assessment proceedings. In other words, Section 126 of the 2003 Act has a purpose to achieve, i.e., to put an implied restriction on such unauthorised consumption of electricity.

19. The provisions of the 2003 Act, applicable Regulations and the agreement executed between the parties at the time of sanction of the load prohibit consumption of electricity in excess of maximum sanctioned/installed load. In the event of default, it also provides for the consequences that a consumer is likely to face. It embodies complete process for assessment, determination and passing of a demand order. This defined legislative purpose cannot be permitted to be frustrated by interpreting a provision in a manner not intended in law. This Court would have to apply the principle of purposive interpretation in preference to textual interpretation of the provisions of Section 126 of the 2003 Act. .............

7.3. After discussing various tenets of interpretation of statute, the Apex Court held that, the relevancy of objects and reasons for enacting an Act is a relevant consideration for the Court while applying various principles of interpretation of statutes. The provisions of Section 126 of theare self-explanatory, they are intended to cover situations other than the situations specifically covered under Section 135 of the. This would further be a reason for the Court to adopt an interpretation which would help in attaining the legislative intent. Therefore, the provisions of Section 126 of theshould be read with other provisions, the Regulations in force and they should be so interpreted as to achieve the aim of workability of the enactment as a whole while giving it a purposive interpretation in preference to textual interpretation. Paras.22 and 23 of the judgment read thus;

22. The relevancy of objects and reasons for enacting an Act is a relevant consideration for the Court while applying various principles of interpretation of statutes. Normally, the Court would not go behind these objects and reasons of the. The discussion of a Standing Committee to a Bill may not be a very appropriate precept for tracing the legislative intent but in given circumstances, it may be of some use to notice some discussion on the legislative intent that is reflected in the substantive provisions of the itself. The Standing Committee on Energy, 2001, in its discussion said, the Committee feel that there is a need to provide safeguards to check the misuse of these powers by unscrupulous elements. The provisions of Section 126 of the 2003 Act are self-explanatory, they are intended to cover situations other than the situations specifically covered under Section 135 of the 2003 Act. This would further be a reason for this Court to adopt an interpretation which would help in attaining the legislative intent.

23. By applying these principles to the provisions of this case requiring judicial interpretation, we find no difficulty in stating that the provisions of Section 126 of the 2003 Act should be read with other provisions, the Regulations in force and they should be so interpreted as to achieve the aim of workability of the enactment as a whole while giving it a purposive interpretation in preference to textual interpretation.

7.4. On the distinction between Sections 126 and 137 of the Act, the Apex Court noticed that, upon their plain reading, the mark differences in the contents of Section 126 and Section 135 are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. Section 135 of thefalls under Part XIV relating to offences and penalties and title of the Section is theft of electricity. The Section opens with the words whoever, dishonestly does any or all of the acts specified under Section 135(1)(a) to (e) of the so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. In contradistinction to these provisions, Section 126 of thewould be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression unauthorised use of electricity.

7.5. The Apex Court held that, Section 135 of thedeals with an offence of theft of electricity and the penalty that can be imposed for such theft, which squarely falls within the dimensions of criminal jurisprudence, and m ens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of thedoes not speak of any criminal intendment and is primarily an action and remedy available under the civil law, which does not have features or elements which are traceable to the criminal concept of mens rea. Thus, the expression unauthorised use of electricity under Section 126 of thedeals with cases of unauthorised use, even in absence of intention. Paras.28 and 29 of the judgment read thus;

28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of criminal jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea.

29. Thus, it would be clear that the expression unauthorised use of electricity under Section 126 of the 2003 Act deals with cases of unauthorised use, even in absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Section 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the.

7.6. Therefore, the Apex Court concluded that, there is a clear distinction between the cases that would fall under Section 126 of theon the one hand and Section 135 of theon the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorised use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorised use of electricity and then theft which is governed by the provisions of Section 135 of the.

7.7. The word dishonest in normal parlance means wanting in honesty. After referring the term dishonestly, which has been explained by the courts in terms of Section 24 of the Indian Penal Code, 1860 the Apex Court held that, dishonesty is a state of mind where a person does an act with an intent to deceive the other, acts fraudulently and with a deceptive mind, to cause wrongful loss to the other. If acts of the type stated under Section 135(1)(a) to (e) of the Electricity Act, 2003 are committed and that state of mind, mens rea, exists, the person shall be liable to punishment and payment of penalty as contemplated under the provisions of the. In contradistinction to this, the intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the.

7.8. On the question of assessment and computation under Section 126 of the Act, the Apex Court noticed that, wherever the assessing officer arrives at the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if such period cannot be ascertained, it shall be limited to a period of 12 months immediately preceding the date of inspection and the assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of service specified under these provisions. This computation has to be taken in terms of Section 126(5), Section 126(6) and Section 127 of the. Para.37 of the judgment reads thus;

37. Wherever the assessing officer arrives at the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if such period cannot be ascertained, it shall be limited to a period of 12 months immediately preceding the date of inspection and the assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of service specified under these provisions. This computation has to be taken in terms of Section 126(5), Section 126(6) and Section 127 of the 2003 Act. The complete procedure is provided under these Sections. Right from the initiation of the proceedings till preferring of an appeal against the final order of assessment and termination thereof, as such, it is a complete code in itself.

7.9. On the implication of the expression unauthorised use of electricity in Explanation (b) to Section 126 of the Act, the Apex Court noticed that, the expression unauthorised use of electricity on its plain reading means use of electricity in a manner not authorised by the licensee or the Board. Authorisation refers to the permission of the licensee to use of electricity, subject to the terms and conditions for such use and the law governing the subject. The supply of electricity to a consumer is always subject to the provisions of the Electricity Act, State Acts, Regulations framed thereunder and the terms and conditions of supply in the form of a contract or otherwise. Generally, when electricity is consumed in violation of any or all of these, it would be understood as unauthorised use of electricity.

7.10. On examining this general view in the light of Explanation (b) to Section 126 of the Act, the Apex Court observed that, unauthorised use of electricity means the usage of electricity by the means and for the reasons stated in Explanation (b)(i) to (v) to Section 126 of the. Some of the illustratively stated circumstances of unauthorised use in the Section cannot be construed as exhaustive. The unauthorised use of electricity would mean what is stated under that Explanation, as well as such other unauthorised use, which is squarely in violation of the above mentioned statutory or contractual provisions. The Apex Court observed further that, unauthorised use of electricity in the manner as is undisputed on record, clearly brings the consumer under liability and in blame within the ambit and scope of Section 126 of the. The blame is in relation to excess load while the liability is to pay on a different tariff for the period prescribed in law and in terms of an order of assessment passed by the assessing officer by the powers vested in him under the provisions of Section 126 of the.

7.11. After referring to the expression means used in Explanation (b) to Section 126 of the Act, the Apex Court held that, the scope of the expression means has to be construed in the background of the purpose sought to be achieved by that Section, i.e., to ensure stoppage of misuse/unauthorised use of electricity as well as to ensure prevention of revenue loss. The primary object of the expression means is intended to explain the term unauthorised use of electricity which, even from the plain reading of the provisions of the Electricity Act, 2003 or on a common sense view cannot be restricted to the examples given in the Explanation. Section 126(5) and clause (iv) of Explanation (b) to Section 126 of thewere both amended/substituted by the Electricity (Amendment) Act, 2007 with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the. This amendment, therefore, has to be given its due meaning, which will fit into the scheme of the and would achieve its object and purpose. Paras.50 and 51 of the judgment read thus;

50. In other words, the purpose sought to be achieved is to ensure stoppage of misuse/unauthorised use of the electricity as well as to ensure prevention of revenue loss. It is in this background that the scope of the expression means has to be construed. If we hold that the expression means is exhaustive and cases of unauthorised use of electricity are restricted to the ones stated under Explanation (b) of Section 126 alone, then it shall defeat the very purpose of the 2003 Act, inasmuch as the different cases of breach of the terms and conditions of the contract of supply, regulations and the provisions of the 2003 Act would escape the liability sought to be imposed upon them by the Legislature under the provisions of Section 126 of the 2003 Act. Thus, it will not be appropriate for the Courts to adopt such an approach.

51. The primary object of the expression means is intended to explain the term unauthorised use of electricity which, even from the plain reading of the provisions of the 2003 Act or on a common sense view cannot be restricted to the examples given in the Explanation. The Legislature has intentionally omitted to use the word includes and has only used the word means with an intention to explain inter alia what an unauthorised use of electricity would be. It must be noticed that clause (iv) of Explanation (b) and sub-Section (5) of Section 126 of the 2003 Act were both amended/substituted by the same amending Act 26 of 2007, with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment, therefore, has to be given its due meaning which will fit into the scheme of the 2003 Act and would achieve its object and purpose.

7.12. The Apex Court, taking note of the indisputable fact that electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the Regulations and the provisions of the, held that unauthorised use of electricity cannot be restricted to the stated clauses under Explanation to Section 126 but has to be given a wider meaning so as to cover cases of violation of terms and conditions of supply and the Regulations and provisions of the Electricity Act, 2003 governing such supply. Unauthorised use of electricity itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. Paras.61 and 62 of the judgment read thus;

61. Unauthorised use of electricity cannot be restricted to the stated clauses under the explanation but has to be given a wider meaning so as to cover cases of violation of terms and conditions of supply and the regulations and provisions of the 2003 Act governing such supply. Unauthorised use of electricity itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the explanation. It is indisputable that the electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the Regulations framed and the provisions of the 2003 Act.

62. The requirement of grant of licence itself suggests that electricity is a controlled commodity and is to be regulated by the regulatory authorities. If a person unauthorisedly consumes electricity, then he can certainly be dealt with in accordance with law and penalties may be imposed upon him as contemplated under the contractual, regulatory and statutory regime. ......

7.13. The Apex Court, after referring to the agreement in question, which deals with conditions of supply, observed in Paras.64 and 65 of the judgment that, minimum energy charges are to be levied with reference to contract demand at the rate prescribed under the terms and conditions. These clauses of the agreement clearly show that the charges for consumption of electricity are directly relatable to the sanctioned/connected load and also the load consumed at a given point of time if it is in excess of the sanctioned/connected load. The consumer could consume electricity up to 110KVA but if the connected load exceeded that higher limit, the category of the consumer itself could stand changed from medium industry to large industry which will be governed by a higher tariff. Once the category stands changed because of excessive consumption of electricity, the tariff and other conditions would stand automatically changed. The licensee has a right to reclassify the consumer under Regulation 82 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Regulations, 2004 if it is found that a consumer has been classified in a particular category erroneously or the purpose of supply as mentioned in the agreement has changed or the consumption of power has exceeded the limit of that category, etc. The Conditions of Supply even place a specific prohibition on consumption of excessive electricity by a consumer. On the cumulative reading of the terms and conditions of supply, the contract executed between the parties and the provisions of the Electricity Act, 2003 the Apex Court concluded in Para.67 of the judgment that, consumption of electricity in excess of the sanctioned/connected load shall be an unauthorised use of electricity in terms of Section 126 of the. This is for the reason that, overdrawal of electricity amounts to breach of the terms and conditions of the contract and the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations.

7.14. The Apex Court held that, consumption in excess of sanctioned load is violative of the terms and conditions of the agreement as well as of the statutory benefits. Under Explanation (b) (iv), unauthorised use of electricity means if the electricity was used for a purpose other than for which the usage of electricity was authorised. Explanation (b)(iv), thus, would also cover the cases where electricity is being consumed in excess of sanctioned load, particularly when it amounts to change of category and tariff. Accordingly, the Apex Court rejected the contention that, where the electricity was provided for domestic purpose and is used for industrial purpose or commercial purpose, then alone it will amount to change of user or purpose, i.e., it is only the actual change in purpose of use of electricity and not change of category that would attract the provisions of Section 126 of the. Paras.71 and 72 of the judgment read thus;

71. Consumption in excess of sanctioned load is violative of the terms and conditions of the agreement as well as of the statutory benefits. Under Explanation (b)(iv), unauthorised use of electricity means if the electricity was used for a purpose other than for which the usage of electricity was authorised. Explanation (b)(iv), thus, would also cover the cases where electricity is being consumed in excess of sanctioned load, particularly when it amounts to change of category and tariff. As is clear from the agreement deed, the electric connection was given to the respondent on a contractual stipulation that he would consume the electricity in excess of 22KVA but not more than 110KVA. The use of the negative language in the condition itself declares the intent of the parties that there was an implied prohibition in consuming electricity in excess of the maximum load as it would per se be also prejudiced. Not only this, the language of Regulations 82 and 106 also prescribe that the consumer is not expected to make use of power in excess of approved contract demand otherwise it would be change of user falling within the ambit of unauthorised use of electricity.

72. Again, there is no occasion for this Court to give a restricted meaning to the language of Explanation (b)(iv) of Section 126. According to the learned counsel appearing for the respondent, it is only the actual change in purpose of use of electricity and not change of category that would attract the provisions of Section 126 of the 2003 Act. The contention is that where the electricity was provided for a domestic purpose and is used for industrial purpose or commercial purpose, then alone it will amount to change of user or purpose. The cases of excess load would not fall in this category. This argument is again without any substance and, in fact, needs to be noticed only to be rejected.

7.15. The Apex Court held further that, the expressions of the Explanation to Section 126 of the Electricity Act, 2003 are to be given a wider and amplified meaning so as to ensure the implementation of the provisions in contradistinction to defeating the very object of the said Act. After stating the principles laid own in Association of Industrial Electricity Users v. State of A.P. (2002 (3) SCC 711 [LQ/SC/2002/325] ) and Punjab State Electricity Board v. Vishwa Caliber Builders (P) Ltd. (2010 (4) SCC 539 [LQ/SC/2010/294] ) the Three-Judge Bench of the Apex Court laid down in Seetharam Rice Mills case (supra) that, the cases of excess load of consumption would be squarely covered under Explanation (b)(iv) to Section 126 of the Electricity Act, 2003. Once this factor is established, then the assessing officer has to pass the final order of assessment in terms of Section 126(3) to (6) of the said Act. Section 126(6) contemplates that the assessment under Section 126 shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5). The reference to the category in Section 126(6) fully substantiates the view that change of category by consumption of excess load will automatically bring the defaulter within the mischief of Explanation to Section 126.

7.16. Accordingly, in Para.87 of the judgment in Seetharam Rice Mills case (supra), the Three-Judge Bench of the Apex Court concluded that, wherever the consumer commits the breach of the terms of the agreement, Regulations and the provisions of the by consuming electricity in excess of the sanctioned and connected load, such consumer would be in blame and under liability within the ambit and scope of Section 126 of the Electricity Act, 2003. The expression unauthorised use of electricity means as appearing in Section 126 of theis an expression of wider connotation and has to be construed purposively in contrast to contextual interpretation while keeping in mind the object and purpose of the. The cases of excess load consumption than the connected load inter alia would fall under Explanation (b)(iv) to Section 126 of the Act, besides it being in violation of Regulations 82 and 106 of the Regulations and terms of the agreement.

8. Following the law laid down by the Apex Court in Seetharam Rice Mills case (supra), a Division Bench of this Court in which one among us (AKN J) was a member, held in M/s. Classic Color Lab v. Assistant Engineer and others (2014 (3) KLT 57 [LQ/KerHC/2014/1123] ) that, while interpreting the provisions of Section 126 of the Electricity Act, 2003 this Court would have to apply the principle of purposive interpretation in preference to textual interpretation, keeping in mind the purpose to be achieved by that Section, i.e., to put an implied restriction on unauthorised use of electricity. Therefore, a construction which will improve the workability of the Statute, to be more effective and purposive, would have to be preferred to any other interpretation which may lead to undesirable results.

8.1. In Classic Color Labs case (supra), in the site inspection conducted on 3.3.2005, unauthorised use of electricity was detected by the APTS in the premises in question where the appellant/consumer was having a Colour Photo Processing Unit and Lab. The APTS found that the appellant/consumer was misusing electricity for industrial purpose under LT-IV tariff for commercial use, attracting higher tariff under LTVIIA. Accordingly, the appellant/consumer was issued with a demand notice, demanding energy charges at a rate equal to one and a half times LT-VIIA tariff for a period of 6 months, less the amount already paid under LT-IV tariff.

8.2. After referring to Explanation (b) to Section 126 of the Act, this Court held that, once it is found that the appellant/consumer had indulged in unauthorised use of electricity, the penal assessment contemplated under Section 126 of thehas to follow. As per Section 126(6), as it stood prior to the Amendment Act 26 of 2007, such assessment shall be made at a rate equal to one and a half times the tariff applicable for the relevant category of services specified in subsection (5).

8.3. In Classic Color Labs case (supra), it was contended on behalf of the appellant/consumer that, assessment under Section 126 of theshould be made at a rate equal to one and a half times the tariff applicable for industrial connection. Per contra, it was contended on behalf of the Board that, such assessment should be made at a rate equal to one and a half times the tariff applicable for commercial connection, for which a higher tariff is applicable.

8.4. After taking note of the law laid down by the Apex Court in Seetharam Rice Mills case (supra), this Court held that, once it is found that the appellant/consumer had indulged in unauthorised use of electricity supplied under industrial tariff, the entire consumption in that service connection will have to be assessed under Section 126(6) of theand as such, the contention of the appellant/consumer that the consumption through the light meter alone should have been charged under LT-VIIA is untenable. This Court held further that, the only interpretation that can be given to Section 126(6) of theis that, in an assessment under Section 126 for unauthorised use of electricity, assessment shall be made at a rate equal to one and a half times (two times with effect from 15.6.2007) the tariff applicable for the relevant category of services attracting higher tariff for which the electricity supplied was unauthorisedly used, and not the relevant category of service to which the consumer belongs. Paras.15 and 16 of the judgment read thus;

15. On 3.3.2005, the appellants premises was inspected by the APTS. As evident from Ext.P1 site mahazar, the APTS found that, the power supply through the light meter under industrial tariff LT-IV was being used for the neon lights and air conditioners in the studio, which are under commercial tariff LT-VIIA. The finding in Ext.P1 site mahazar is to the effect that, the appellant was indulging in unauthorised use of electricity for industrial purpose under the tariff LT-IV for commercial purpose, attracting a higher tariff under LT-VIIA. As the appellant used the electricity supplied for industrial use under LT-IV tariff for commercial use under LTVIIA tariff it amounts to unauthorised use of electricity falling under Clause (b) to the Explanation to Section 126. For such unauthorised use the appellant is liable to be assessed under Section 126(6), as it stood prior to the Amendment Act 26 of 2007, at a rate equal to one and half times the tariff applicable for the relevant category of service. On 27.10.2005, the appellant segregated the commercial load in the industrial connection and thereafter, the connected load of service connection under commercial tariff was enhanced from 5KW to 28KW and the connected load of service connection under industrial tariff was reduced from 88KW to 44KW. This makes it abundantly clear that, the appellant was indulging in unauthorised use electricity, thereby using a major portion of the electricity supplied under industrial tariff for commercial use. Once it is found that, the appellant had indulged in unauthorised use of the electricity supplied under industrial tariff the entire consumption in that service connection will have to be assessed under Section 126(6). Therefore, the contention of the appellant that the consumption through the light meter alone should have been charged under LT-VIIA is absolutely untenable.

16. The KSEB is supplying electricity for industrial purpose, under LT-IV tariff, at a subsidised rate, whereas, supply of electricity for commercial purpose, under LT-VIIA tariff attracts a higher rate. As evident from the calculations made in Ext.P5 demand, the commercial tariff under LT-VIIA during the relevant period was Rs.8.25 per unit. As pointed out by the learned Standing Counsel for the KSEB, the industrial tariff under LT-IV during the relevant period was only Rs.4.25 per unit. Therefore, if the appellant is assessed under Section 126(6) for the unauthorised use of electricity, taking LT-IV industrial tariff @Rs.4.25 per unit as the basis for calculating the rate equal to one and half times the tariff applicable for the relevant category of service, then the appellant need pay only Rs.6.37 per unit for unauthorised use of electricity for commercial purpose, as against the prevailing rate of Rs.8.25 per unit applicable for the commercial tariff under LT-VIIA. If such an interpretation is given, it would defeat the very purpose that Section 126 has to achieve, i.e., to put an implied restriction on unauthorised consumption of electricity. On the other hand, if the appellant is assessed for the unauthorised use of electricity, taking LT-VIIA industrial tariff @Rs.8.25 per unit as the basis for calculating the rate equal to one and half times the tariff applicable for the relevant category of service, the appellant has to pay only Rs.12.37 per unit for unauthorised use of electricity for commercial purpose, as against the prevailing rate of Rs.8.25 per unit applicable for the commercial tariff under LT-VIIA. Therefore, the only interpretation that can be given to Section 126(6) of the Electricity Act, 2003, is that, in an assessment under Section 126 for unauthorised use of electricity, assessment shall be made at a rate equal to one and half times (two times with effect from 15.6.2007) the tariff applicable for the relevant category of service attracting higher tariff for which the electricity supplied was unauthorisedly used and not the relevant category of service to which the consumer belongs, and we hold so.

8.5. In Classic Color Labs case (supra), after taking note of the arguments advanced on behalf of the appellant/consumer relying on the judgment of this Court in J.D.T. Islam Orphanage Committee v. Assistant Engineer, KSEB (2007 (3) KLT 388) and that of the Calcutta High Court in Sk. Jafar Ali v. West Bengal State Electricity Distribution Company Limited (AIR 2010 Cal. 84 [LQ/CalHC/2009/1056] ) this Court observed that, J.D.T. Islam Orphanage Committees case (supra) is a case under the Electricity Act, 1910, in which an orphanage under LT-VI tariff was assessed for unauthorised extension, by levying LT-VIII tariff applicable to temporary extension. It was not a case in which electricity supplied under LT-VI tariff was used by the consumer for any other purpose attracting higher tariff. That decision was rendered on an entirely different set of facts and it does not in any way support the case of the appellant/consumer.

8.6. In Sk.Jafar Alis case (supra) the electricity supplied under domestic tariff was used for commercial purpose attracting a higher tariff. The Court found that the meter used for commercial purpose situated in the consumers premises has not been tampered with and it is the meter relating to domestic consumption that has been tampered with. The learned Judges of the Calcutta High Court, interpreting Section 126(6) of theheld that, the phrase applicable for the relevant category of the services specified in sub-section (5) appearing in Section 126 should be reasonably construed as the rate applicable for the relevant category of the services to which the consumer belongs. Though, the judgment of the Calcutta High Court does support the view as propounded by the learned counsel for the appellant/consumer, the Division Bench of this Court disagreed with that view of the Calcutta High Court, stating that, if the above interpretation is accepted, a consumer under LT-V Agriculture tariff at t he rate of around Rs.1 /- per unit need pay only Rs.1 .50 per unit for unauthorised use of electricity for commercial purpose, as against the p revailing rate of Rs.8 .25 per unit applicable for LT-VIIA commercial tariff.

9. In Maria Plana Society v. KSEB and others (judgment dated 21.5.2009 in W.P.(C).No.12068 of 2009) a learned Judge of this Court held that, as can be seen from Section 126 of the Electricity Act, 2003 as amended, once the assessing officer reaches the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period and the assessment shall be at the rate equal to twice the tariff applicable for the relevant category of services. A reading of Section 45(3)(a) of theshows that, charges for electricity supplied by a distribution licensee include fixed charges in addition to the charges for the actual electricity supplied and consumed. In the light of the above statutory provisions, the irresistible conclusion is that, tariff includes both fixed charges and energy charges and that, once the assessing officer has reached the conclusion that unauthorised used of electricity has taken place, he is bound to make assessment at the rate equal to twice the tariff applicable, which includes the dues payable towards energy charges also. In the judgment dated 3.4.2014 in W.A.No.1149 of 2009 arising out of the judgment in W.P.(C). No.12068 of 2009 the Division Bench, without interfering with the judgment of the learned Single Judge, disposed of the Writ Appeal leaving open the question of law as to whether the penalty under Section 126 of theis applicable to energy charges also in the case of unauthorised additional load.

10. In Seetharam Rice Mills case (supra) the Apex Court has stated that, Section 126 of the Act, which embodies a complete process for assessment, determination and demand has a purpose to achieve, i.e., to put an implied restriction on such unauthorised consumption of electricity. The provisions of Section 126 of theare self-explanatory, which are intended to cover situations other than the situations specifically covered under Section 135 of the; which would be applicable to cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices, which may squarely fall within the expression unauthorised use of electricity. Section 135 of thedeals with an offence of theft of electricity, which squarely falls within the dimensions of criminal jurisprudence, and m ens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of thedoes not speak of any criminal intendment, which does not have features or elements which are traceable to the criminal concept of mens rea. Thus, the expression unauthorised use of electricity under Section 126 of thedeals with cases of unauthorised use, even in absence of intention. As such, intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the.

11. As held by the Apex Court in Seetharam Rice Mills case (supra), unauthorised use of electricity means the usage of electricity by the means and for the reasons stated in Explanation (b)(i) to (v) to Section 126 of the Act, which would mean what is stated under that Explanation, as well as such other unauthorised use, which is squarely in violation of the statutory or contractual provisions in the, Regulations framed thereunder and the terms and conditions of supply in the form of contract or otherwise. Unauthorised use of electricity brings the consumer under liability and in blame within the ambit and scope of Section 126 of the. The blame is in relation to excess load while the liability is to pay on a different tariff for the period prescribed in law and in terms of an order of assessment passed by the assessing officer.

12. After referring to the expression means used in Explanation (b) to Section 126 of the Act, the Apex Court held that, the primary object of that expression is intended to explain the term unauthorised use of electricity which, even from the plain reading of the provisions of the or on a common sense view cannot be restricted to the examples given in the Explanation. Section 126(5) and clause (iv) of Explanation (b) to Section 126 of thewere amended by the Electricity (Amendment) Act, 2007 with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the Act, which has to be given its due meaning, which will fit into the scheme of the and would achieve its object and purpose.

13. Taking note of the fact that electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, Regulations and the provisions of the, the Apex Court held that, unauthorised use of electricity cannot be restricted to the stated clauses under Explanation to Section 126 but has to be given a wider meaning so as to cover cases of violation of terms and conditions of supply and the Regulations and provisions of the governing such supply. Therefore, the Apex Court concluded that, consumption of electricity in excess of the sanctioned/connected load shall be an unauthorised use of electricity in terms of Section 126 of the Act, since overdrawal of electricity amounts to breach of the terms and conditions of the contract and the statutory conditions; besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations.

14. The provisions under Section 126 of the Act, as it stood prior to the amendment by the Electricity (Amendment) Act, 2007 provided for assessment of unauthorised use of electricity one and a half times the tariff applicable for the relevant category of service, for a period of three months immediately preceding the date of inspection in the case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.

15. In tune with the provisions under Section 126 of the Act, Regulation 51(1) of the Conditions of Supply, 2005 provides for assessment of unauthorised additional load in terms of Regulation 50(5) and (6), i.e., at a rate equal to one and half times the tariff applicable for the relevant category of services specified in Regulation 50(5), for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person/occupier or possessor of such premises or place. Though Regulation 51(1) of the Conditions of Supply, 2005 employs the term penalised, what is contemplated under the said Regulation is only assessment of unauthorised use of electricity in terms of Section 126 of thefor the period specified in Section 126(5) and at the rate specified in Section 126(5) of the. In that view of the matter, Regulation 51(1) of the Conditions of Supply, 2005 is neither ultra vires the provisions of Section 126 of thenor unenforceable, and we hold so.

16. The provisions under Section 126 of theunderwent a substantial change by the Electricity (Amendment) Act, 2007. After the amendment, if the period during which unauthorised use of electricity has taken place cannot be ascertained by the assessing officer, such period shall be limited to a period of twelve months immediately preceding the date of inspection and assessment shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5). The said amendment made to Section 126(5) and (6) of the Act, with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of thehas to be given its due meaning, which will fit into the scheme of the and would achieve its object and purpose. In the absence of any challenge against the said amendment made to Section 126(5) of the Act, the petitioners/consumers cannot now contend that the period of twelve months prescribed therein is unreasonable, in as much as, for theft of electricity the period prescribed in Section 135 of theis only three months.

17. When unauthorised use of electricity under Section 126 of thedeals with cases of unauthorised use even in absence of intention, it cannot be contended that, in the absence of mens rea, assessment at the maximum rate, i.e. at the rate equal to twice the tariff applicable to the relevant category of service is legally impermissible. In all cases of unauthorised use of electricity falling under Explanation (b) to Section 126 of the Act, the assessing officer is empowered to assess such unauthorised use of electricity, at the rate prescribed in Section 126(6) and for the period specified in Section 126 (5), as amended by the Electricity (Amendment) Act, 2007. In that view of the matter, we find no merit in the contention of the learned counsel for the petitioners/consumers, relying on the judgment of a Division Bench of this Court in KSEB and others v. M/s. Alukkas Jewellery (judgment dated 9.11.2005 in W.A.No.1262 of 2004) that, in cases where no damage has been caused to the Boards installation due to overdrawal of electricity, assessment at the rate equal to twice the tariff applicable to the relevant category of service is unwarranted.

18. In Seetharam Rice Mills case (supra) the Three-Judge Bench of the Apex Court laid down that, consumption of electricity in excess of the sanctioned/connected load would be squarely covered under Explanation (b)(iv) to Section 126 of the. Once this factor is established, then the assessing officer has to pass the final order of assessment in terms of Section 126(6) of the Act, which shall be at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5).

19. In PTC India Ltd. v. Central Electricity Regulatory Commission (2010 (4) SCC 603 [LQ/SC/2010/272] ) the Apex Court held that, the term tariff, though not defined in the Electricity Act, 2003, it includes within its ambit not only the fixation of rates but also the rules and regulations relating to it.

20. Section 45(1) of theprovides that, subject to the provisions of Section 45, the prices to be charged by a distribution licensee for the supply of electricity by him in pursuance of Section 43 shall be in accordance with such tariffs fixed from time to time and conditions of his licence. Section 45(3) provides further that, the charges for electricity supplied by a distribution licensee may include a fixed charge in addition to the charge for the actual electricity supplied; and a rent or other charges in respect of any electric meter or electrical plant provided by the distribution licensee.

21. The provisions under Section 45(3) of themakes it explicitly clear that, the term tariff in Section 45(1), which is the price to be charged by the distribution licensee for the supply of electricity, includes the fixed charge in addition to the charge for the actual electricity supplied. If that be so, it can be safely concluded that, the term tariff in Section 126(6) of theincludes both fixed charges and charges for the electricity supplied, which has to be assessed in the case of a consumer indulged in unauthorised use of electricity, at a rate equal to twice the tariff applicable for the relevant category of services specified in sub-section (5). Therefore, once the assessing officer has reached the conclusion that the consumer has indulged in unauthorised use of electricity, he is bound to make assessment of such consumer at the rate equal to twice the tariff applicable, which includes both fixed charges and energy charges.

22. Relying on the decisions in JDT Islam Orphanage Committee v. Assistant Engineer, KSEB (2007 (3) KLT 388), George Joseph and another v. KSEB and others (2008 (4) KLT 610), etc. the petitioners/consumers contended that, when the energy consumed through meter having been billed and payment having been made, assessment of penal charges for such consumption of energy is legally impermissible and the only liability that can be fastened upon the consumers found indulging in unauthorised use of electricity is penal charges on fixed charges. The said contention can only be repelled in view of our finding made hereinbefore, with reference to the provisions under Sections 45 and 126 of theand the law laid down by the Apex Court in Seetharam Rice Mills case (supra) and that laid down by this Court in Classic Color Labs case (supra) that, the assessment of a consumer Section 126(6) of the Act, at the rate equal to twice the tariff applicable, includes both fixed charges and energy charges.

23. In Board Order dated 7.2.2008, which was made applicable with effect from 15.6.2007, it was ordered that, the field officers shall strictly follow the provisions of Section 126(5) and (6) of the Act, as amended by the Electricity (Amendment) Act, 2007, i.e., two times the respective tariff for the entire period, and in case the said period cannot be ascertained for a period of twelve months, for assessing penalty in the case of misuse of energy including unauthorised additional load, unauthorised extension and meter tampering cases detected. It was also made clear that, the penalty rate shall be applicable to both fixed and energy charges for the unauthorised use. Penalty charges for current charges shall be levied for proportionate energy charge and n ormal current charge collected shall be deduct e d.

24. Though Board Order dated 7.2.2008 employs the term penalty, what is contemplated under the said order is only assessment of unauthorised use of electricity in terms of Section 126 of the Act, as amended by the Electricity (Amendment) Act, 2007, for the period specified in Section 126(5) and at the rate specified in Section 126(6) of the. In that view of the matter, B oard Order dated 7 .2.2008 is neither ultra vires the provisions of Section 126 of thenor unenforceable, and we hold so.

25. In Seetharam Rice Mills case (supra) the Apex Court was dealing with a case in which the tariff applicable to the consumer was changed from medium industry to tariff applicable for large industry. Similarly, in Classic Color Labs case (supra) this Court was dealing with a case in which electricity supplied at a subsidised rate for industrial purpose under LT-IV tariff, was unauthorisedly used for commercial purpose, which attracts a higher rate under LT-VIIA tariff. In the said decision, while upholding the demand for fixed charges and energy charges made under Section 126(6) of the Act, this Court held that, in an assessment under Section 126 for unauthorised use of electricity, assessment shall be made at a rate equal to one and a half times (two times with effect from 15.6.2007) the tariff applicable for the relevant category of services attracting higher tariff for which the electricity supplied was unauthorisedly used, and not the relevant category of service to which the consumer belongs.

26. As far as domestic consumers are concerned, the fixed charge for single phase connection is Rs.20/- per month and it is Rs.60/- per month for three phase connection, irrespective of the connected load. Therefore, a domestic consumer is paying fixed charge at the specified rate irrespective of the connected load and the energy charge for the actual consumption at the rates specified in the tariff order. Even if there is excess connected load in the premises of a domestic consumer, the electricity charges realisable from the consumer do not change and as such, additional connected load would not result in any financial loss to the licensee as per the terms and conditions of the tariff orders in force. That may be the reason which persuaded the Electricity Regulatory Commission not to penalise domestic consumers for additional loads in their premises, by incorporating Regulation 153(15) of the Supply Code, 2014, which provides that, unauthorised additional load in the same premises and under same tariff shall not be reckoned as unauthorised use of electricity. Such domestic consumers will have the option either to regularise such additional load or to get such additional load removed at the discretion of the licensee. If the consumer fails to remove the additional load as directed by the licensee, the supply to the premises can be disconnected by the licensee.

27. Regulation 153(15) of the Supply Code, 2014 has undergone amendment by the Kerala Electricity Supply (Amendment) Code 2016, which came into force on 4.2.2016, by adding the words except in the case of consumers billed on the basis of connected load at the end of that sub-regulation. Such an amendment was made when it was found that, the application of Regulation 153(15) to the consumers who are charged on connected load basis, would result in the licensees incurring financial loss in as much as, for the additional connected load the licensees are entitled for charges demanded on connected load basis.

28. In cases falling under Explanation (b) to Section 126 of the Act, the assessing officer is empowered to assess unauthorised use of electricity at the rate prescribed in Section 126(6) and for the period specified in Section 126(5), as amended by the Electricity (Amendment) Act, 2007 for both fixed charges and energy charges. Penalty charges for current charges shall be levied for proportionate energy charge and normal current charge collected shall be deducted. In case of unauthorised use of electricity in a higher tariff, such assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of services attracting such higher tariff for which electricity supply was unauthorisedly used and not the relevant category of service to which the consumer belongs.

29. A different yardstick has to be applied in cases of consumption of electricity in excess of the sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter. This is for the reason that, in such cases request made by the consumer for regularisation of unauthorised connected load or enhancement of contract demand will be acceded to by the Board, as a matter of course, once the consumer fulfills the statutory requirements, unless such regularisation of connected load or enhancement of contract demand necessitates upgradation of the existing distribution system or enhancement of voltage level of supply.

30. As held by the Apex Court in Seetharam Mills case (supra), in the case of unauthorised use of electricity, the blame on the consumer is in relation to excess load while the liability is to pay on a different tariff for the period prescribed in law and in terms of the order of assessment passed by the assessing officer under the provisions of Section 126 of the. In that view of the matter, in the case of a consumer, who is blamed with overdrawal of electricity in excess of sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services , which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under Section 126(6) of thecan only be equal to twice the fixed charges payable and such consumer cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of services, unless regularisation of such additional connected load or enhancement of contract demand necessitate upgradation of the existing distribution system or enhancement of voltage level of supply.

31. For the reasons stated hereinbefore, we hold as follows;

(i) The presence of the assessing officer at the time of inspection and detection of unauthorised use of electricity in the premises of a consumer is not a mandatory requirement for initiating assessment proceedings under Section 126(1) of the.

(ii) The expression unauthorised use of electricity under Section 126 of thedeals with cases of unauthorised use even in the absence of intention. Hence, the intention of the consumer is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the.

(iii) Whenever a consumer commits the breach of the terms of the agreement, Regulations and the provisions of the by consuming electricity in excess of the sanctioned/connected load, such consumer would be in blame and under liability to pay at the rate equal to twice the tariff applicable for the relevant category of services in terms of Section 126 of the.

(iv) The term tariff in Section 126(6) of theincludes both fixed charges and charges for the electricity supplied, which has to be assessed in the case of a consumer indulged in unauthorised use of electricity, at a rate equal to twice the tariff applicable for the relevant category of services specified in subsection (5).

(v) In case of unauthorised use of electricity in a higher tariff, such assessment shall be made at the rate equal to twice the tariff applicable for the relevant category of services attracting such higher tariff for which electricity supplied was unauthorisedly used and not the relevant category of service to which the consumer belongs.

(vi) However, in the case of a consumer, who is blamed with overdrawal of electricity in excess of sanctioned/connected load in the very same premises and for the very same purpose, which do not involve any change in tariff applicable for the relevant category of services, which consumption has already been metered and paid by the consumer, since such usage being not by any artificial means or through a tampered meter, assessment under Section 126(6) of thecan only be equal to twice the fixed charges payable and such consumer cannot be saddled with the liability to pay twice the energy charges applicable for the relevant category of services, unless regularisation of such additional connected load or enhancement of contract demand necessitates upgradation of the existing distribution system or enhancement of voltage level of supply.

(vii) In all other cases falling under Explanation (b) to Section 126 of the Act, the assessing officer is empowered to assess unauthorised use of electricity at the rate prescribed in Section 126(6) and for the period specified in Section 126(5), as amended by the Electricity (Amendment) Act, 2007 for both fixed charges and energy charges. Penalty charges for current charges shall be levied for proportionate energy charge and normal current charge collected shall be deducted.

(viii) Though Regulation 51(1) of the Conditions of Supply, 2005 employs the term penalised, what is contemplated under the said Regulation is only assessment of unauthorised use of electricity in terms of Section 126 of thefor the period specified in Section 126(5) and at the rate specified in Section 126(6) of the. As such, Regulation 51(1) of the Conditions of Supply, 2005 is neither ultra vires the provisions of Section 126 of thenor unenforceable.

(ix) What is contemplated under Board Order dated 7.2.2008 is only assessment of unauthorised use of electricity in terms of Section 126 of the Act, as amended by the Electricity (Amendment) Act, 2007, for the period specified in Section 126 (5) and at the rate specified in Section 126(5) of the. As such, the said Board Order is neither ultra vires the provisions of Section 126 of thenor unenforceable.

32. Now we shall deal with the individual cases.

33. W.P.(C)No.2159 of 2009:- The 2nd petitioner is a consumer under Electrical Section, Chottanikkara with Consumer No.11661 under LT-VIIA commercial tariff, with a sanctioned connected load of 29KW, for conducting a rest house in the premises of Chottanikkara Temple. On 13.5.2008, the Regional Audit Officer of the Kerala State Electricity Board conducted a surprise inspection in the said premises, along with the officials of Electrical Section, Chottanikkara. In the said inspection it was found that, the electrical connection of the rest house (Narayana Mandiram) has been extended to the three buildings (Darsana, Sudarsana and Karthika) situated about 50 meters away from the rest house and also to two lodges (A-Block and (C-Block) situated about 200 meters away from the rest house, with a combined connected load of 79,130W (rounded to 80KW). Based on Ex.P1 site mahazar dated 13.5.2008, the 2nd petitioner was issued with Ext.P2 notice and Ext.P3 penal demand dated 14.5.2008 for Rs.6,28,321/-. By Ext.P2, the 2nd petitioner was required to regularise the unauthorised additional load as early as possible, since the penal charges will continue until regularisation. Ext.P3 was followed by a revised demand, i.e., Ext.P4 penal demand dated 14.5.2008 for Rs.6,18,977/-. Challenging the penal demand in Ext.P4, the 2nd petitioner filed appeal before the Deputy Chief Engineer, Electrical Circle, Ernakulam. The appellate authority disposed of the said appeal by Ext.P5 order dated 20.1.2008 virtually upholding the penal demand made in Ext.P4 for unauthorised additional load detected in the inspection conducted on 13.5.2008, however, subject to certain changes in the calculation of the penal charges. All other contentions raised by the 2nd petitioner were negatived. At the time of filing that appeal, the 2nd petitioner remitted Rs.3,09,489/- towards 50% of the demand made in Ext.P4, vide Ext.P6 receipt dated 26.6.2008. Based on Ext.P5 order, the 2nd petitioner was issued with Ext.P7 revised demand dated 12.12.2008 for Rs.6,18,327/-. After deducting the remittance already made vide Ext.P6, the 2nd petitioner was required to remit the balance amount of Rs.3,09,489/- within one week from the date of receipt of Ext.P7. Challenging the said demand and seeking refund/adjustment of the amount already remitted, the petitioners are before this Court seeking various reliefs. On 20.1.2009, while admitting the writ petition on file, this Court granted interim stay of Ext.P7 for a period of two months, on condition that the petitioners shall remit Rs.50,000/- within a period of one month. The said interim stay was extended until further orders on 20.7.2009. According to the petitioners, the only irregularity detected at the time of inspection was unauthorised additional load. Since the petitioners have already paid energy charges for the entire quantity of electricity consumed in the premises, levy of penal charges in respect of fixed charges for unauthorised additional load alone is legally permissible and as such, levy of penal charges in respect of energy charges already paid is legally impermissible. In order to buttress the said contention, the petitioners would rely on the decisions of this Court in JDT Islam Orphanage Committee v. Assistant Engineer, KSEB (2007 (3) KLT 388) and George Joseph v. KSEB (2008 (4) ILR 377).

33(a). In view of the conclusions in Para.31 hereinbefore, the challenge made against Ext.P7 demand to the extent of the levy of penal charges on energy charges can be sustained only if the case of the petitioner falls under Clause (vi) of Para.31 of this judgment. It is for the assessing authority to consider the said issue and pass a revised assessment order, if the petitioner is found eligible in terms of Clause (vi) of Para.31 of this judgment. In such circumstances, this writ petition is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by this Court in Para.31 of this judgment. Necessary orders in this regard shall be passed by the assessing authority, with notice to the petitioner and after affording the petitioner a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Till such time, the interim order passed by this Court shall continue to be in force, if the petitioner has complied with the condition stipulated therein.

34. W.P.(C)No.6993 of 2013:- The petitioner, a partnership firm running an industrial unit at Kaniyarcode, is a consumer under Electrical Section, Thiruvilwamala with Consumer No.1917 under LT-IV industrial tariff, with a sanctioned connected load of 74.821KW, for conducting a rubber retreading unit. On 13.9.2012, Anti-Power Power Theft Squad conducted an inspection in the said premises along with the officials of Electrical Section, Thiruvilwamala. In the said inspection it was found that, though electric connection was granted for conducting a rubber retreading unit, the said connection is being used for conducting electroplating unit, with a total connected load of 117.115KW, i.e., with an unauthorised additional load of 42.994KW (rounded to 43KW). Based on Ex.P1 site mahazar dated 13.9.2012, the petitioner was issued with Ext.P2 notice and Ext.P3 penal demand dated 18.9.2012 for Rs.4,74,764/-. By Ext.P2, the petitioner was required either to remove the unauthorised additional load within seven days or to regularise the same, since penal charges will continue until regularisation. Ext.P3 penal demand was followed by Ext.P3(a) calculation statement dated 19.9.2012. After affording an opportunity of being heard to the petitioner, Ext.P6 order dated 9.10.2012 was issued refixing the unauthorised additional load at 33 KW and the penal demand was reduced from Rs.4,74,764/- to Rs.3,93,047/-. Accordingly, the petitioner was issued with Ext.P7 revised penal demand dated 10.10.2012 and Ext.P9(a) calculation statement dated 9.10.2012. Challenging the penal demand in Ext.P6, the petitioner filed Ext.P8 appeal before the Deputy Chief Engineer, Electrical Circle, Thrissur. The appellate authority disposed of the said appeal by Ext.P9 order dated 16.2.2013 virtually upholding the penal demand made in Ext.P6 for unauthorised additional load detected in the inspection conducted on 13.9.2012, however, unauthorised additional load was refixed as 23KW, instead of 33KW. All other contentions raised by the petitioner were negatived. At the time of filing of that appeal the petitioner remitted Rs.1,96,525/- towards 50% of the demand made in Ext.P6, vide Ext.P8(a) receipt dated 25.10.2012. Based on Ext.P9 order, the petitioner was issued with Exts.P11 revised demand dated 31.12.2012 for Rs.75,063/-, after deducting the remittance already made vide Ext.P8(a). The petitioner was issued with Ext.P11 revised demand along with Ext.P10 covering letter dated 1.3.2013 and Ext.P11(a) calculation statement dated 27.2.2013. According to the petitioner, for additional power allocation of 38.45KW, Ext.P13 application dated 22.6.2012 has already been made after remitting the application fee of Rs.10/- and a further sum of Rs.10,000/- as advance estimate, vide Ext.P13(a) receipt dated 4.7.2012. Challenging the demand in Ext.P11 and seeking refund of the amount already remitted, the petitioner is before this Court seeking various reliefs. According to the petitioner, the entire proceedings initiated against it based on Ext.P1 site mahazar is illegal since the inspection conducted on 13.9.2012 was not in the presence of the Assistant Engineer concerned, who is the assessing officer. Since the petitioner has already paid energy charges for the entire quantity of electricity consumed, levy of penal charges in respect of energy charges already paid is legally impermissible, as the same being contrary to the provisions of Section 126 of the Electricity Act, 2003. As evident from Ext.P5 invoice, the petitioner purchased two buffing motors on 13.2.2012 and the accessories for installing those motors were purchased only on 4.5.2012, vide Ext.P5(a) invoice. Therefore, imposition of penalty in respect of the said additional load of 11KW for a period of 12 months is illegal and unsustainable. Further, for additional power allocation of 38.45KW, the petitioner has already made Ext.P13 application dated 22.6.2012, after remitting the application fee and advance estimate, vide Ext.P13(a) receipt dated 4.7.2012. Having failed to discharge the statutory obligation to provide the additional power allocation as sought for within a period of one month, the petitioner cannot be penalised for the additional connected load detected at the time of inspection. In the counter affidavit filed by the respondents it is contended, inter alia, that based on a physical verification, the capacity of the buffing motors were reduced to 5.5KW and as such, a total 10KW additional connected load was reduced while issuing Ext.P7 revised demand. For additional power allocation, the petitioner remitted the application fee and processing fee only on 4.7.2012. Though administrative sanction for the work was accorded on 9.7.2012, vide Ext.R1(b), the petitioner did not remit the amount until 25.10.2012 and thereafter the work was completed on 30.10.2012. The petitioner submitted the test report on 2.11.2012 and after inspection, the additional connected load was regularised on 9.11.2012. As such, there is no violation of the statutory provisions while considering the request made by the petitioner for additional power allocation.

34(a). In view of the conclusions in Para.31 hereinbefore, the challenge made against Ext.P11 demand to the extent of the levy of penal charges on energy charges can be sustained only if the case of the petitioner falls under Clause (vi) of Para.31 of this judgment. It is for the assessing authority to consider the said issue and pass a revised assessment order, if the petitioner is found eligible in terms of Clause (vi) of Para.31 of this judgment. The challenge made against Ext.P1 site mahazar on the ground that the inspection conducted on 13.9.2012 was not in the presence of the assessing officer, cannot be sustained, in view of the conclusions in Clause (i) of Para.31 hereinbefore. In such circumstances, this writ petition is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by this Court in Para.31 of this judgment. Necessary orders in this regard shall be passed by the assessing authority, with notice to the petitioner and after affording the petitioner a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Till such time, the interim order passed by this Court shall continue to be in force, if the petitioner has complied with the condition stipulated therein.

35. W.P.(C)No.13322 of 2013:- This writ petition has been filed by the petitioner in W.P.(C)No.6993 of 2013, seeking for an order to quash Ext.P10 communication dated 18.4.2013 of the Deputy Chief Engineer, Electrical Circle, Thrissur by which it was informed that, for considering the application for additional power requirement the petitioner has to remit the arrears under LT connection, i.e., the arrears covered by Ext.P5 demand notice dated 1.3.2013 issued based on Ext.P4 order dated 16.2.2013, which is the subject matter in W.P.(C) No.6993 of 2013 pending before this Court. On 28.5.2013, while admitting W.P.(C)No.13322 of 2013, this Court passed an interim order directing the respondents to provide HT connection to the petitioner on deposit of a further sum of Rs.25,000/- towards the demand made in Exts.P4 and P5, subject to the result of the writ petition. The respondents have filed a counter affidavit justifying the demand made in Ext.P10, by reiterating the contentions already raised in the counter affidavit filed in W.P.(C)No.6993 of 2013.

35(a). Since the reliefs sought for in this writ petition is subject to the outcome of W.P.(C).No.6993 of 2013, this writ petition is also disposed of in terms of the aforesaid judgment, observing that the liability of the petitioner to pay the demand made in Ext.P10 will be subject to the outcome of the revised assessment made by the assessing officer in terms of the judgment in W.P.(C).No.6993 of 2013.

36. W.P.(C)No.22644 of 2015:- The petitioner is a consumer under Electrical Section, Eroor Road with Consumer No.21056 under LTVIIA commercial tariff, with a sanctioned connected load of 57KW, for conducting a hotel. On 19.5.2010, the petitioner made an application for additional power requirement of 30KW. Based on the said application, the petitioner was issued with a communication dated 20.11.2010 requiring him to remit a sum of Rs.2,71,723/- in order to install a 100KVA transformer. However, the petitioner could not remit the said amount. On 7.1.2011, as instructed by the Regional Audit Officer, the officials of Electrical Section, Eroor Road conducted an inspection in the petitioners premises. In the said inspection it was found that, the petitioner has installed a generator in the premises and further, the total connected load in the premises was found to be 113KW, as against the sanctioned connected load of 57KW. Based on Ext.P1 site mahazar the petitioner was issued with Ext.P3 provisional bill demanding penal charges for the unauthorised additional load of 57KW, amounting to Rs.4,89,072/-, and the said bill was forward to the petitioner along with Ext.P2 communication. It appears that, the petitioner submitted an objection dated 17.1.2011 against the provisional demand made in Ext.P3. After conducting a personal hearing, the provisional demand made in Ext.P3 was finalised by Ext.P4 order dated 24.1.2011, as the request made by the petitioner for re-inspection was found not genuine in view of the details of connected load clearly shown in Ext.P1 site mahazar and the application for additional power requirement made by the petitioner on 19.5.2010. Accordingly, the petitioner was issued with Ext.P5 final bill dated 31.1.2011 for Rs.4,89,072/-. According to the petitioner, in order to regularise the additional connected load to 30KW, he made Ext.P6 application dated 9.11.2010 under the Voluntary Disclosure Scheme. Thereafter, the petitioner remitted Rs.2,71,723/- in order to install a 100KVA transformer. On 17.5.2011, electric supply to the premises was disconnected based on a demand cum disconnection notice dated 5.5.2011. The petitioner has approached this Court in W.P.(C)No.13658 of 2011 and in the said writ petition this Court passed an interim order dated 17.5.2011, ordering restoration of electric supply, on the petitioner remitting one-third of the demand and the respondents were directed to consider the application for regularisation of additional load, at the earliest. According to the petitioner, after conducting an inspection, a 100KVA transformer was installed in the premises and a sanctioned connected load of 88KW was granted. Later, W.P.(C) No.13658 of 2011 was disposed of by Ext.P7 judgment dated 23.7.2014, by directing the petitioner to file appeal against the demand before the appellate authority designated under Section 127 of the Electricity Act, 2003, after complying with the statutory formalities. Accordingly, the petitioner filed Ext.P8 appeal after remitting 50% of the demand. The appellate authority, after conducting a personal hearing, disposed of the said appeal by Ext.P9 order dated 2.6.2015, upholding the penal demand. The appellate authority held that, the petitioner has not disputed the existence of unauthorised use of electricity in the premises and that, the assessment made is strictly in accordance with Section 126 of the Electricity Act, as amended by the amendment Act of 2007. Regarding Ext.P6 application alleged to have been made by the petitioner under Voluntary Disclosure Scheme, the appellate authority found that, no valid document such as receipt of application fee or any other dated acknowledgment by the respondents has been produced in order to support the said claim. Accordingly, the appellate authority directed the petitioner to remit the balance amount within 30 days. Based on Ext.P9 order, the petitioner was issued with Ext.P10 demand notice dated 27.6.2015 for Rs.2,44,536/-. Challenging the said demand and seeking refund of the amount already remitted, the petitioner is before this Court seeking various reliefs. The petitioner has also sought for a declaration that Regulation 51(1) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 is ultra vires of the Electricity Act, 2003 and therefore unenforceable. On 27.7.2015, this Court passed an interim order staying coercive steps pursuant to Ext.P10 notice for a period of two months on condition that the petitioner remits one half of the amount demanded in Ext.P10 within 6 weeks. According to the petitioner, Ext.P1 site mahazar is not one prepared in accordance with law, since it was prepared in his absence and there was also no independent witness present at the time of inspection. The inspection was also not conducted in the presence of the assessing officer. Further, no proceedings under Section 126 of the Electricity Act, 2003 can be initiated for unauthorised additional load as it will not come under unauthorised use of electricity as defined in the explanation to Section 126 of the said Act. The only provision which provides for penalisation for additional load is Regulation 51(a) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 which is not in accordance with the provisions of the Electricity Act and as such the Electricity Board is not empowered to make any such provision for penalisation. Since the petitioner has already paid energy charges for the entire quantity of electricity consumed, levy of penal charges in respect of energy charges already paid is legally impermissible. If at all the petitioner has to pay any amount as application fee for Ext.P6 application made under Voluntary Disclosure Scheme, the same should have been brought to his notice. Nonpayment of application fee is only an irregularity, which will not make the application invalid.

36(a). In view of the conclusions in Para.31 hereinbefore, the challenge made against Ext.P10 demand to the extent of the levy of penal charges on energy charges can be sustained only if the case of the petitioner falls under Clause (vi) of Para.31 of this judgment. It is for the assessing authority to consider the said issue and pass a revised assessment order, if the petitioner is found eligible in terms of Clause (vi) of Para.31 of this judgment. The challenge made against Ext.P1 site mahazar on the ground that the inspection conducted on 19.5.2010 was not in the presence of the assessing officer and that Regulation 51 (1) of the Conditions of Supply, 2005 is ultra vires the provisions of the and hence unenforceable cannot also be sustained, in view of the conclusions in Clauses (i) and (viii) of Para.31 hereinbefore. Mere absence of independent witness will not vitiate in any manner the validity of Ext.P1 site mahazar, especially when the petitioner has not made out any specific case of malafides against the officers concerned. Similarly, in the absence of any valid documents, the petitioner cannot rely on Ext.P6 application alleged to have been made under Voluntary Disclosure Scheme. In such circumstances, this writ petition is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by this Court in Para.31 of this judgment. Necessary orders in this regard shall be passed by the assessing authority, with notice to the petitioner and after affording the petitioner a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Till such time, the interim order passed by this Court shall continue to be in force, if the petitioner has complied with the condition stipulated therein.

37. W.P.(C)No.31025 of 2008:- The petitioner is a consumer under Electrical Section, Ettumanoor with Consumer No.19468 under LT-VIIA commercial tariff, with a sanctioned connected load of 9KW, for conducting a super market. On 22.8.2008, the Regional Audit Officer of the KSEB conducted a surprise inspection in the said premises along with the officials of Electrical Section, Ettumanoor. In the said inspection, the total connected load in the premises was found as 37.178KW (rounded to 38KW). Based on Ex.P1 site mahazar dated 22.8.2008, the petitioner was issued with Ext.P4 penal demand dated 13.10.2008 for Rs.2,06,269/-, for an unauthorised additional load of 29KW. In Ext.P4 penal demand, Rs.69,600/- is demanded towards fixed charges and Rs.1,36,669/- towards energy charges. Ext.P4 penal demand was followed by Ext.P5 demand dated 13.10.2008 for Rs.69,405/-. According to the petitioner, Regulation 51(1) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 which provides for penalty for unauthorised additional load is without any statutory authority and therefore, ultra vires of the Electricity Act, 2003. Similarly, Ext.P6 Board Order dated 7.2.2008, which provides that in cases of unauthorised load penalty shall be applicable to both fixed charges and energy charges for the unauthorised use, is also ultra vires of the said Act. Therefore, challenging the demand made in Exts.P4 and P5 the petitioner is before this Court seeking various reliefs. The petitioner has also sought for a declaration that, Regulation 51(1) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 is issued without authority of law and therefore unenforceable; so also Ext.P6 Board Order dated 7.2.2008. On 23.10.2008, while admitting the writ petition, this Court granted an interim order on condition that, the petitioner pays the penal charges amounting to Rs.69,600/- covered by Ext.P4, within two weeks. It was made clear that, any other payment of the disputed amounts would be subject to the result of the writ petition. Later, by the order dated 15.3.2010 in I.A.No.2997 of 2010, this Court directed the respondents to effect conversion of the petitioners LT service connection as HT connection on the petitioner paying the arrears, subject to the result of the writ petition.

37(a). In view of the conclusions in Para.31 hereinbefore, the challenge made against Exts.P4 and P5 demands to the extent of the levy of penal charges on energy charges can be sustained only if the case of the petitioner falls under Clause (vi) of Para.31 of this judgment. It is for the assessing authority to consider the said issue and pass a revised assessment order, if the petitioner is found eligible in terms of Clause (vi) of Para.31 of this judgment. The contention that Regulation 51(1) of the Conditions of Supply, 2005 is ultra vires the provisions of the and hence unenforceable and that Ext.P6 Board order dated 7.2.2008 is unenforceable cannot also be sustained, in view of the conclusions in Clauses (viii) and (ix) of Para.31 hereinbefore. In such circumstances, this writ petition is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by this Court in Para.31 of this judgment. Necessary orders in this regard shall be passed by the assessing authority, with notice to the petitioner and after affording the petitioner a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Till such time, the interim order passed by this Court shall continue to be in force, if the petitioner has complied with the condition stipulated therein.

38. W.P.(C)No.3206/2016:- The petitioner is a consumer under the Electrical Section (Central), Ernakulam with Consumer No.9870 under LT-VIIA commercial tariff, with a sanctioned connected load of 8KW, for conducting a commercial establishment. On 6.7.2012, Anti-Power Power Theft Squad conducted an inspection in the said premises along with the officials of Electrical Section (Central), Ernakulam. In the said inspection, an unauthorised additional load of 12KW over and above the sanctioned connected load of 8KW was detected. Based on the site mahazar, the petitioner was issued with a penal demand for Rs.4,00,788/- dated 6.7.2012. The said penal demand was confirmed vide proceedings dated 6.9.2012. Aggrieved by the same, the petitioner filed appeal before the Deputy Chief Engineer. The appellate authority confirmed the assessment by order dated 22.7.2013, which was under challenge in W.P.(C)No.21768 of 2013. This Court disposed of the said writ petition, by directing the petitioner to file appeal before the appellate authority newly constituted in terms of Section 127 of the Electricity Act. The appellate authority conducted a hearing on 25.9.2015 and passed Ext.P1 order dated 27.10.2015, revising the period of assessment from 22.4.2012 to 6.7.2012. Accordingly, the assessment order dated 6.9.2012 was set aside and the assessing authority was directed to revise the assessment under LT VIIA tariff, for the period from 22.4.2012 to 6.7.2012 for the unauthorised additional load of 12KW. Pursuant Ext.P1 order, the assessing authority issued Ext.P2 communication dated 16.11.2015 revising the penal demand from Rs.4,00,788/- to Rs.1,03,707/-. Since the petitioner has already remitted Rs.2,00,389/-, the excess payment of Rs.96,682/- was credited to his account, which will be adjusted towards his next bills. Challenging Exts.P1 and P2 to the extent of demanding penalty on current charges, the petitioner is before this Court in this writ petition. The petitioner has sought for a declaration that penalty could be levied only on such charges that have not been duly measured and paid by the consumer.

38(a). In view of the conclusions in Para.31 hereinbefore, the challenge made against Exts.P1 and P2 demands to the extent of the levy of penal charges on energy charges can be sustained only if the case of the petitioner falls under Clause (vi) of Para.31 of this judgment. It is for the assessing authority to consider the said issue and pass a revised assessment order, if the petitioner is found eligible in terms of Clause (vi) of Para.31 of this judgment. In such circumstances, this writ petition is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by this Court in Para.31 of this judgment. Necessary orders in this regard shall be passed by the assessing authority, with notice to the petitioner and after affording the petitioner a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.

39. W.P.(C)No.3842 of 2016:- The petitioner is a consumer under Electrical Section, Valapattanam with Consumer No.1963 under LT-IV industrial tariff, with a sanctioned connected load of 82.185KW, for conducting a plywood manufacturing unit. On 12.9.2013, Anti Power Theft Squad conducted an inspection in the said premises along with the officials of Electrical Section, Valapattanam. In the said inspection, an unauthorised additional load of 74.225KW was detected in the premises. Based on Ex.P1 site mahazar dated 12.9.2013, the petitioner was issued with Ext.P2 penal demand dated 23.9.2013 for Rs.4,60,506/- for an unauthorised additional load of 74KW. In Ext.P2 penal demand, Rs.1,06,560/- is demanded towards fixed charges and Rs.3,53,946/- towards energy charges. The petitioner objected to the said penal demand mainly complaining about the proportionate energy charges levied. After considering the said objection, the assessing authority confirmed the said penal demand in Ext.P3 final bill dated 18.10.2013. Challenging Ext.P3 demand, the petitioner filed Ext.P4 appeal before the Deputy Chief Engineer, which ended in dismissal by Ext.P5 order dated 26.8.2014, which was under challenge in W.P.(C)No.24513 of 2014. The said writ petition was disposed of by Ext.P6 judgment, by directing the appellate authority newly constituted in terms of Section 127 of the Electricity Act to dispose of Ext.P4 appeal. The appellate authority conducted a hearing on 25.9.2015 and passed Ext.P7 order dated 13.1.2016, upholding the penal demand made in Ext.P3. Seeking a writ of certiorari to quash Exts.P3 and P7, the petitioner is before this Court in this writ petition. The petitioner has also sought for a declaration that proportionate energy charges cannot be levied in a case where only unauthorised additional load and no theft or tampering with the meter is involved, since the charges for the energy already metered consequent on the additional load had already been paid and no additional penal charges can be imposed on the very same consumption. By interim order dated 2.2.2016, this Court stayed all steps pursuant to Exts.P3 and P7 including disconnection of power supply to Consumer No.1963 for one month, which interim order was extended until further orders on 3.3.2016.

39(a). In view of the conclusions in Para.31 hereinbefore, the challenge made against Exts.P3 and P7 demands to the extent of the levy of penal charges on energy charges can be sustained only if the case of the petitioner falls under Clause (vi) of Para.31 of this judgment. It is for the assessing authority to consider the said issue and pass a revised assessment order, if the petitioner is found eligible in terms of Clause (vi) of Para.31 of this judgment. In such circumstances, this writ petition is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by this Court in Para.31 of this judgment. Necessary orders in this regard shall be passed by the assessing authority, with notice to the petitioner and after affording the petitioner a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Till such time, the interim order passed by this Court shall continue to be in force.

40. W.P.(C)No.12383 of 2016:- The petitioner, who is a builder and developer of residential and commercial buildings, is a consumer under Electrical Section, Thrikkakkara with Consumer Nos.34956 and 34957 under LT-VIIA commercial tariff, with a sanctioned connected load of 5.8KW and 82.21KW respectively. On 16.8.2011, the Section Squad of Electrical Section, Thrikkakkara conducted an inspection in the said premises. At the time of inspection, the total connected load recorded in Consumer No.34956 was 32.68KW, as against the sanctioned connected load of 5.8KW. The total connected load recorded in Consumer No.34957 was 82.21KW, as against the sanctioned connected load of 17KW. Based on Exts.P1(A) and P1(B) site mahazars dated 16.8.2011, the petitioner was issued with Ext.P3(A) penal demand dated 18.8.2011 for Rs.2,88,000/- in respect of Consumer No.34956 and Ext.P3(B) penal demand dated 18.8.2011 for Rs.6,21,2011/- in respect of Consumer No.34957. Exts.P3(A) and P3(B) penal demands were under challenge before this Court in W.P.(C) No.23261 of 2011, which was disposed of by Ext.P4 judgment dated 6.1.2016, setting aside Exts.P3(A) and P3(B) and the assessing authority was directed to re-assess the petitioner under Section 126 of the Electricity Act, 2003. Thereafter, the petitioner was issued with Ext.P5 revised proceedings of the assessing authority dated 14.3.2016, re-fixing the penal demand for Consumer No.34956 for the period from 29.11.2010 to 16.8.2011 as Rs.90,326/- and that for the period from 16.8.2011 to 30.3.2013 as Rs.2,48,806/-. After deducting Rs.75,000/- already paid and also the available cash deposit of Rs.12,507/-, the petitioner was directed to pay Rs.2,51,625/- for the aforesaid periods. Similarly, the penal demand for Consumer No.34957 for the period from 1.2.2011 to 16.8.2011 was re-fixed as Rs.2,30,653/- and that for the period from 16.8.2011 to 26.8.2014 as Rs.26,30,194/-. After deducting Rs.75,000/- already paid and also the available cash deposit of Rs.1,30,646/-, the petitioner was directed to pay Rs.26,55,201/- for the aforesaid periods. Challenging Exts.P1(A) and P1(B) mahazars and Ext.P5 penal demand, the petitioner is before this Court in this writ petition. The petitioner has sought for a declaration that the respondents are not entitled to penalise him for duly and correctly measured energy charge when there is no loss of revenue. The petitioner has also sought for a declaration that the jurisdiction/power of the assessing authority under Section 126 of the Electricity Act, 2003 cannot be delegated. On 31.3.2016, while admitting the writ petition on file, this Court granted interim stay of all further action pursuant to Ext.P5 for a period of two months, which interim order was extended until further orders on 1.6.2016.

40(a). In view of the conclusions in Para.31 hereinbefore, the challenge made against Ext.P5 demand to the extent of the levy of penal charges on energy charges can be sustained only if the case of the petitioner falls under Clause (vi) of Para.31 of this judgment. It is for the assessing authority to consider the said issue and pass a revised assessment order, if the petitioner is found eligible in terms of Clause (vi) of Para.31 of this judgment. The challenge made against the assessment on the ground that the inspection conducted on 16.8.2011 was not in the presence of the assessing officer cannot also be sustained, in view of the conclusions in Clause (i) of Para.31 hereinbefore. In such circumstances, this writ petition is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by this Court in Para.31 of this judgment. Necessary orders in this regard shall be passed by the assessing authority, with notice to the petitioner and after affording the petitioner a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Till such time, the interim order passed by this Court shall continue to be in force, if the petitioner has complied with the condition stipulated therein.

41. W.A.No.1705 of 2012:- This writ appeal arises out of the judgment of the learned Single Judge of this Court dated 28.5.2012 in W.P.(C)No.257 of 2012, a writ petition filed by the appellant/petitioner seeking a writ of certiorari to quash Ext.P4 order of the Deputy Chief Engineer dated 31.10.2011 and the consequential demand made in Ext.P5 communication dated 17.12.2011 of the Assistant Engineer, Electrical Section, Payangadi. The appellant is a consumer under Electrical Section, Payangadi with Consumer Nos.3754 under LT VIA tariff with a sanctioned connected load of 37KW, for running a self-financing educational institution. According to the respondents, being a self-financing educational institution, the tariff applicable is LT VIIA, with effect from 5/2008. On 31.5.2011, the petitioners premises was inspected by the Assistant Audit Officer in charge of the Regional Audit Officer, along with the officials of Electrical Section, Payangadi. In the said inspection the total connected load in the premises was found as 303.66KW. In Ext.P1 site mahazar it was found that, electric supply from Consumer Nos.3754 was unauthorisedly extended to a CBSE School, canteen, carpentry, etc. Based on Ext.P1 site mahazar, the appellant was issued with a provisional demand for Rs.22,63,000/-. The appellant submitted objections to the said demand and after considering the same, the assessing authority by Ext.P2 order dated 30.6.2011 reduced the demand to Rs.8,58,702/-. Against the penal demand in Ext.P2, the appellant filed Ext.P3 appeal before the Deputy Chief Engineer. The appellate authority issued Ext.P4 order dated 31.10.2011, concluding that use of 1050W at carpentry alone may be treated as unauthorised line extension and all other unauthorised use can be treated as additional load for educational purpose. Accordingly, the assessing authority was directed to issue penal demand for 12 months. Based on Ext.P4, the assessing authority issued Ext.P5 communication dated 17.12.2011 re-fixing the penal demand as Rs.3,67,326/-. Since the appellant had already deposited Rs.4,29,351/- on 13.7.2011 towards 50% of the demand made in Ext.P2 bill, the excess amount of Rs.62,025/- was credited to his account. At the request of the appellant, the additional cash deposit of Rs.4,206/- and the spot bill amount of Rs.8,604/- were adjusted from this amount on 5.11.2011 and the balance amount of Rs.49,215/- was treated as advance. The learned Single Judge repelled the challenge made against Exts.P4 and P5 by the judgment dated 28.5.2012. However, the respondents were directed to refund a sum of Rs.73,000/- to the appellant, as admitted in Para.7 of their counter affidavit to the writ petition. Challenging the judgment of the learned Single Judge, the appellant is before this Court in this writ appeal, contending that, penal charges cannot be levied on daily basis as held by this Court in JDT Islam Orphanage Committee v. Asst. Engineer, KSEB (2007(3) KLT 388) and that, the proportionate current charges cannot be levied for consumption relating to unauthorised additional load which was already metered and paid.

41(a). In view of the conclusions in Para.31 hereinbefore, the challenge made against Exts.P4 and P5 demands to the extent of the levy of penal charges on energy charges can be sustained only if the case of the petitioner falls under Clause (vi) of Para.31 of this judgment. However, in view of the judgment of this Court in JDT Islam Orphanage Committees case (supra), penal charges cannot be levied on daily basis. It is for the assessing authority to consider the said issue and pass a revised assessment order, if the petitioner is found eligible in terms of Clause (vi) of Para.31 of this judgment. While undertaking such exercise, the assessing officer shall not levy penal charges on daily basis in view of the law laid down by this Court in JDT Islam Orphanage Committees case (supra). In such circumstances, this writ appeal is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by this Court in Para.31 of this judgment and also the observations contained herein. Necessary orders in this regard shall be passed by the assessing authority, with notice to the petitioner and after affording the petitioner a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.

42. W.A.No.422 of 2014:- This Writ Appeal arises out of the judgment of the learned Single Judge dated 29.6.2012 in W.P.(C)No. 1813 of 2006 filed by the respondent herein, who is a consumer under Electrical Section, Kottayam East with Consumer No.3978 under LT VIIA commercial tariff with a sanctioned connected load of 15KW, for conducting a hotel. On 18.7.2000, Anti-Power Theft Squad conducted inspection in the petitioners premises and detected unauthorised additional load of 25KW. Pursuant to the said inspection, the respondent was issued with a penal demand for Rs.2,18,067/-. The said demand was under challenge in Ext.P1 appeal, which was disposed of by Ext.P2 order dated 26.12.2005 of the Deputy Chief Engineer upholding the penal demand. However, it was ordered that, electricity duty should not be demanded on the penal current charges. Accordingly, the assessing authority was directed to issue revised bill to the respondent. Based on Ext.P2 order, the assessing authority issued Ext.P3 revised demand dated 4.1.2006 for Rs.2,00,084/-. Challenging Exts.P2 and P3, the respondent had approached this Court in W.P.(C)No. 1813 of 2006, seeking a writ of certiorari to quash the same and for a declaration that he is liable to pay penalty only for the fixed charges in view of the judgment of this Court in W.A.No.1231 of 2003. The learned Single Judge by the judgment dated 29.6.2012 modified the demand made in Exts.P2 and P3 by directing the respondent/petitioner to pay penal charges at 1.5 times, instead of 2 times. Accordingly, the assessing authority was directed to re-compute the penalty at 1.5 times of the fixed charges as well as energy charges and intimate the further demand to the respondent/writ petitioner, after adjusting the amount already remitted by him. Challenging the said judgment, the appellants/respondents are before this Court in this Writ Appeal. 42(a). Since inspection in the premises of the respondent/writ petitioner was conducted on 18.7.2000, assessment for unauthorised additional load is governed by the provisions of Regulation 42(d) of the Conditions of Supply, 1990. The liability of the respondent/writ petitioner has to be revised in terms of the law laid down by the Full Bench of this Court in Kerala State Electricity Board V. Manglay Timber and Furniture (W.A.No.1614 of 2007 and connected cases). It is for the assessing authority to pass a revised assessment order in terms of the said decision of the Full Bench of this Court. In such circumstances, this writ appeal is disposed of by directing the assessing authority to pass a revised assessment order in terms of the law laid down by the Full Bench of Court in the judgment referred to above. Necessary orders in this regard shall be passed by the assessing authority, with notice to the respondent/writ petitioner and after affording him a reasonable opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.