Claim Of Electricity Board Not Barred By Limitation Where Unauthorised Usage Is Continuous: Kerala High Court

The Kerala High Court recently observed that Electricity Board's claim for additional amount on the basis of alleged unauthorised usage of electricity is not barred by law of limitation when the violation is a continuous and recurring one. 

The Court observed that this is in addition to the factors provided under Section 126 (5) of the Electricity Act 2003.

Justice Shaji P Chaly observed that, 

I am also of the view that, the limitation under the Limitation Act does not hit the claim of the Board as contented by the petitioner, because the instant violation is a continuous and recurring one, renewing the dues every day, till the unauthorized load is dismantled.

The Petition was filed by Union Bank of India challenging the bill issued by the Anti Power Theft Squad (APTS) and the order passed by the Appellate Authority under Section 127 of the Electricity Act, 2003 r/w the Kerala State Electricity Board (Terms and Conditions of Supply), 2005 whereby the appellate authority affirmed the bill issued by the APTS. 

The Petitioner Bank for the purpose of providing an ATM facility rented a building and an electric connection was provided. According to the petitioner, in respect of additional consumption, the Bank was directed to pay the increased amount of caution deposit on account of energy charges. 

The Counsel appearing for the petitioner, Advocate Sadchith P. Kurup, contended that the usage of electrical energy was correctly metered and the petitioner had been promptly paying the bill for the same and therefore, there is no unauthorised usage of electricity so as to issue a huge demand bill. 

The Counsel further contended that the claim for the additional amount on the basis of the alleged unauthorised load is barred by law of limitation. It was also pointed out that additional charges that can be levied at the most is only for a period of 12 months in contemplation of Section 126(5) of the Act, 2003.

The Standing Counsel for KSEB, Advocate B. Pramod fully supported the bill issued by the Anti Power Theft Squad and the order passed by the appellate authority.

The Court perusing the order passed by the Appellate Authority opined that it is evident that the appellate authority has taken into account the entire contentions advanced by the petitioner bank and has arrived at the conclusion that the petitioner has made unauthorized use of electricity in terms of the provisions of Section 126 of the Act, 2003 r/w regulation 50 of the supply code, 2005.

"It can be seen that the entire aspects dealt with by the appellate authority is based on facts. The order was passed by the appellate authority after providing an opportunity of hearing and participation to the petitioner", Justice Chaly said. 

The Court referring to Section 126 of the Act 2003, pointed out that from the wording of the provision, it can be seen that if the unauthorized use of electricity cannot be ascertained alone, such period shall be limited to a period of 12 months immediately preceding the date of inspection. Furthermore, the Court observed that it was also clear from Section 126(6)(b)(v) of the Act, 2003 that if electricity is used exceeding the authorized supply, it is an unauthorized use and regulation 26 of the Supply Code, 2005 makes it clear if power exceeding the permissible connected load is required, it shall be requested and granted by the board.

In this case, the Board has clearly found that after securing the electricity connection, additional load was being used and monthly bills for the additional burden were being paid without any protest from the year 2007 itself for the usage of electricity over and above the connected load. This clearly indicates that there is a definite period ascertainable for the unauthorized use and the Appellate Authority had passed the impugned order taking into account this evidence. 

"In fact, the connected load that was provided to the petitioner was 780 watts. However, the same has exceeded from the year 2007 itself, and consequent to the air conditioners fitted in the premises, the connected load again varied, thus making the situation worse", the Court said while opining that the limitation under the Limitation Act does not hit the claim of the Board as contented by the petitioner, because the instant violation is a continuous and recurring one, renewing the dues every day, till the unauthorized load is dismantled. The Court further observed that the aforesaid position would be clear from Section 56 of the Act 2003. 

Clause 56(2) of the Electricity Act 2003 is a non-obstante clause to the effect that no sum due from any consumer under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrears of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.

Therefore the limitation of two years prescribed under the said provision will not apply to the case on hand, being a continuous one. Typical is the provision contained under Regulation 136 of the Kerala Electricity Supply Code, 2014. This is in addition to the factors provided under Section 126 (5) of the Act 2003.

The Petition was dismissed since the petitioner has not made out any case of arbitrariness, illegality, or other legal infirmities in the order passed by the appellate authority justifiable to be interfered with in a proceeding under Article 226 of the Constitution of India.

Case Title: Union Bank of India v. The Deputy Chief Engineer and Ors. 

Citation: 2023 LiveLaw(Ker) 22

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