If the period of unauthorized use of electricity cannot be established, the charge will be assessed for 12 months prior to verification: Kerala HC

Division bench Chief Justice Nitin Jamdar and Justice S Manu referring to section 126 (5) of the Electricity Act 2003 and held as follows:

“Therefore, the key factual aspect to be established for assessment purposes is the point in time from which the unauthorized use of electricity took place. If the specified point in time is unclear or uncertain, the only choice under the law is to make an assessment for the twelve month period preceding the date of inspection. Therefore, if the consumer does not agree with the assessment carried out twelve months before the date of inspection, the consumer is obliged to prove the moment of the actual start of the unauthorized consumption.”

The Anti Power Theft Unit (APTS) of the Kerala State Electricity Board (KSEB) paid a surprise visit to the office of the petitioner society on 9th October, 2014. It turned out that the additional cargo was used without permission. The final assessment bill was issued by KSEB, which was appealed to the State Appellate Authority for Electricity. KSEB carried out an assessment for the twelve months preceding the date of inspection to prepare the final account under section 126.

The Appellate Body set aside the final assessment bill and a reassessment was ordered, limiting the assessment period to approximately four months (June 16, 2014 to October 9, 2014).

KSEB challenged the reassessment in a writ petition and the High Court set aside the reassessment order and the final assessment bill was restored. The appellant society preferred a judicial appeal challenging the final assessment bill.

The appellant company argued that the assessment of unauthorized use for 12 months was unfair and illegal.

On the other hand, the KSEB contended that the assessment was made under Section 126 (5) of the Act. It was stated that since the period of unauthorized use of electricity cannot be established, such period is limited to the 12 months immediately preceding the date of inspection under Article 126 (5).

Section 126 deals with assessment. The court, referring to section 126 (5) of the Act, noted that it envisages two situations, firstly, when a period of unauthorized use of electricity can be established, and secondly, when such a period of unauthorized use of electricity cannot be established.

The court noted that in situations where unauthorized use of electricity cannot be established, such a period is limited to a period of 12 months immediately preceding the date of the inspection.

Thus, the court rejected the appeal.

Appellant’s lawyer: lawyers Albin T.O., Prime Minister Umamaheswari

Advocates for Respondents: Senior Advocates Raju Joseph, PB Krishnan, Advocate B. Premod, Standing Advocate Joseph Anthony

Case number: WA NO. 1588 of 2024

Case Title: Secretary, Trichur Tennis Trust vs. Assistant Engineer

Citation: 2024 LiveLaw (Ker) 668

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