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Judgment
Kuldeep Tiwari, J
Fetching grievance from the finnal assessment orders, as issued by the responddent/Corporation, on account of unauthorized use of electriciity, propelled thhe petitioner to file the instant writ petition, under Articles 226/2227 of the Constitution of India, seeking quashing of provisional assessment ordder dated 20.11.2020 (Annexure P-1), final asssessment order dated 14.01.20021 (Annexure P-2), passed by the respondent//Corporation, under the Electriccity Act, 2003 (for short ‘the Act of 20033’), and order dated 02.12.20022 (Annexure P-3), passed by the learned Appellate Authority concerned, wherethrouggh, the statutory appeal preferredd by the petitioner was dismissedd.
The short question, as involvedd in the instant writ petition, is that as to whethher, the petitioner by supplyingg the electricity to its tenants, by installing suub-meter, in the same premises, as the petitioner without prrior permission of the respondent/Corporation, would tantamount to unauthorized use of the ellectricity or not.
Succinctly, the petitioner is haaving plot No.722, Sherpur Kalan, near Preet Coal Depot, Ludhiana, and has an electricity connection of 89.96 KW, under MS category connecttion, with a sanctioned load of 89.960 KWW/ 99.960 KVA. The supply from the abovesaid electriccity connection was being used for industrial purposes. On dated 11.11.2020, the premises of the petitioner was checked, and it was found that the petitioner has accommodaated two tenants in the same premmises, and two different sub-meters have also been installed. In view of thhe above reports, again the SR. XEN/Operations, Focal Point (Spl.) Division, Ludhiana (Assessing Officeer), checked the premises of the petitioner, and during the second checking, it was found that thhe premises of the petitioner connsists of two numbers of floors, and on the each floor, there are two separate tennants, and their electricity billingg is through two sub-meters, being raised by the petitioner.
The connected load on the firstt floor of the said premises, for the use of Hosieery unit, was reported as 22.290 KW, whereas, the connected looad for the grouund floor, was reported as 8.307 KW. The respondent/Corporatiion reported thee said act of the petitioner, too be an unauthorized use of the electricity, and served the petitioner with a provisional order of assessment dated 20.11.2020 (Annexure P-1). Therreupon, the petitioner filed the objections. However, the same was rejecteed, and the final assessment ordder dated 14.01.2021 (Annexure P-2), was served upon the petitioner, and he was directed to deposit Rs.5,41,307/-, calculated as per the procedure mentioned in Chapter-VIIII of the Supply Code Regulation, 2014, within thirty days of issuance of notice, with the office of AEE Commercial Focal Point Division.
Aggrieved with the final asssessment order dated 14.01.20021 (Annexure P-2), the statutory appeal, under Section 127 of the Act of 2003, was preferrred by the petitioner, before the learned Appellate Authoriity, Ludhiana. The said appeal was partially allowed, as the case of the petitioner was found to be covered within the ammbits of unauthorized use of the electricity. However, the respondent/Corporation was directed to re-calculate the assessedd amount and the order of asssessment, was partially interfered. Thereupon, vide Memo No.14 dated 05.01.2023, revised calculation was maade by the respoondent/Corporation, and the petittioner was charged with an amouunt of Rs.73,482/- (1,46,965 – 73,483 already deposited), and the petitioner was directed to deposit the same within a period of 15 days, from the issuance of the notice.
Learned counsel for the petitionner, in an attempt to assail the final assessment order dated 14.01.2021 (Annexure P-2), and the order dated 02.12.2022 (Annexure P-3), as passed by the learned Appellate Authorrity concerned, submits that the instant matter iss not a case of an unauthorized use of the electrricity. He further submits that thee petitioner is well within his rights to install suub-meters for its tenants, for the purpose of ascertaining the real time consummption of electricity by them, annd not for the purpose of selling of electricity. Learned counsel for the petitiooner has placed reliance upon the Regulation 36 of the Supply Code, 2014, to submit that, by any imagination in the act, does not fall under the ambits of unauthorized use of electriccity connection. He has also placed reliance upon the Regulation 8.8.2 of the Supply Code, 2014, which defines “resale of electricity”, according to which, if a consummer supplies electricity to any other person of different premisses, only then, it would tantamount to resalee, which is not the case of the respondent/Corporation.
While continuing with his arguments, learned counsel for the petitioner fuurther submits, that there is noo misuse of the electricity, as the respondent-PSPCL, had not issued any circcular, to the effect that “an ownner cannot rent out his premises, fully or parttly”. In the absence of any suuch restrictions, the respondent/Corporation cannnot conclude that the present caase is a case of unauthorized use of the electriicity. He, in addition, submits that the assessinng authority has not proved that the petitioner had purchased the electricity at per unit, and sold at differeent rate per unit, rather, different sub-meters were installed only to divide the energy bills received from the respondent/PSPCL. No energy bill were issuued to the tenants, so as to collecct a higher amount from them, as fixed by PSSPCL/PSERC. Before serving the notice under Section 126 of the Act of 20003, the respondent/Corporation is required to enquire into, and thereupon, provve that it is the case of resale of the electricity.
The contentions, as raised by the learned counsel for the petitioner has been vociferously opposed by the learned counsel for the respondent/Corporation. He submits that the resale of the electricity has beeen defined undder Regulation 8.8.2 of the Suppply Code, 2014, and in case, any person unauuthorisingly supplies the electricity to any other person, or othher premises, unnless he has been permitted to doo so, would fall within the ambit of resale of electricity, and therefore, as per the Regulation 36 of the Supply Code, 2014, the act of the present petitionner, does fall under the ambits of unauthorized use of the electricity.
This Court has considered the rival submissions, as made by the learned couunsel for the parties concernned, and has gone through the entire case file, and the available record, annd is of the considered opinion that there is no merit in the instant writ petitioon, and the same is required to be dismissed, for the reasons extracted hereinafter:-
(i) Regulation 36 of the Supply Code, 2014, defines unauthorized use of the ellectricity. The same is extracted hereinafter :-
“36. UNAUTHORIZED USE OF ELECTRICITY
Under Section 126 of the Act, the unauthorized use of electricity means usage of electricity:-
(a) by any artificial meanns; or
(b) by a means not authorized by the concerned person or authority or licensee; or
(c) through a tampered meter; or
(d) for the purpose othher than for which the usage of electricity was authorized; or
(e) for the premises or arreas other than those for which the supply of electricity was authorized.”
(ii) As per Regulation 36 (d) ibbid, the unauthorized use of the electricity means usage of the electricity, foor the purpose other than for which the use of electricity was authorized (emphasized specifically). The term “resale of electricity” has been defined undder Regulation 8.8.2 of the Suppply Code, 2014,, and the same is extracted hereinnafter :-
“8.8.2 RESALE OF ELECTRICITY:
The consumer shall not supply any electricity supplied to him by the licensee to another person or other premises unless he has been permitted to do so under the Act or holds licence for distribution or sale of electricity granted by the Commission/State government or has been declarred deemed licensee or has been exempted from obtaining the licence or has been appoointed as franchisee.”
(iii) Perusal of the above clearly elucidates that there is a complete restriction upon the consumer to further suppply electricity, supplied to him by the licensee, to any other person, or premises, unless he has been permitted to do so undder the Act of 2003, or holds thee license for distribution, or sale of electricity granted by the Commission/State Government.
In the instant case, there is no wrangle that the present petitioner was further supplying the electricity to hiss tenants, and for the said act, the petitioner had no authorized permission by the respondent/Corporation, therefore, it is a clear cut case of violation of Regulation 8.8.2 of the Suppply Code of 20014. Further, from the record, it is reflected that the petitioner himself was not running any manufacturing unit, for which, he took the electricity connection from the respondent//PSPCL, therefore, it is a clear cut case of resalle of electricity, in terms of the Regulation 8.8.2 (supra).
Learned counsel for the petitioner has placed reliance upon the Commerciall Circular No.41 of 2024, alongg with Chapter-VIII of the Supply Code of 20014, and as per the Regulation 49 thereof, which prescribes the unauthorized use of the electricity, and as per proviso (v), sub-clause (2) of Regulation 49, the use of supply by the tenant(s)/occupier(s), in the same premises annd for the same purpose for which the usage of electricity was authorized by the distribution licensee, by installation of sub-meter for the purpose of accounting of energy shall not bee considered as resale.
This Court has also considered the above submission, as made by the learned counsel for the petitioner. The perusal of the Commercial Circuular No.41 of 2024, reflects that the said Regulation came into force w.e.f. 14.11.2024. This Court has put a specific query to learned counsel for the petitioner, as to how the said Regulation can be applied retrospectively, to which, he is unable to answer.
No other argument was made by the learned counsel for the petitioner.
Considering the facts and circumstance of the case, and the reasons extracted hereinabove, this Courtt does not find any illegality or perversity in the provisional assessment order dated 20.11.20020 (Annexure P-1), final assessment order datted 14.01.2021 (Annexure P-2), as well as the order dated 02.12.2022 (Anneexure P-3), passed by the learnned Appellate Authority concerned. Consequeently, the instant writ petition is
dismissed, being devoid of merits.