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TMI Blog2022 (12) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... honker, AOR, Mr. Mohammed Sadique T.a., AOR, M/S. Kmnp Law Aor, AOR, Mr. C. K. Sasi, AOR, Mr. Dhananjaya Mishra, AOR. JUDGMENT J.B. PARDIWALA, J. 1. Leave granted in all the captioned Special Leave Petitions. 2. Since the issues raised in all the captioned petition are the same and the challenge is also to the self-same judgment and order passed by the High Court of Kerala dated 12.04.2017 deciding a batch of writ applications filed by the respondents herein, those were taken up for hearing analogously and are being disposed by this common judgment and order. 3. This batch of petitions is at the instance of the Kerala State Electricity Board ("Board" or "KSEB") and is directed against the judgment and order passed by Division Bench of the High Court of Kerala dated 12.04.2017 in Writ Petition (C) No. 22644 of 2015 and allied petitions by which the High Court declared that in case of unauthorised use of electricity in a higher tariff the 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 services to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k up the petitions for hearing on the strength of an order of reference made by a learned Single Judge of the High Court dated 17.08.2015 observing that an authoritative pronouncement on the quantification of penalty under Section 126(6) of the Act 2003 was necessary as everyday many petitions were being filed in the High Court with a challenge to the orders imposing penalty involving 'excess/additional load' falling under explanation (b)(ii) to Section 126 of the Act 2003 and 'unauthorised use of electricity' falling under explanation (b)(iv) to Section 126 of the Act 2003, in which cases, the energy charges are already metered and paid by the consumers. The learned Single Judge of the High Court while passing an order of reference observed that a different yardstick may have to be applied to cases falling under the explanation (b)(i), (iii) and (v) to Section 126 of the Act 2003 as the energy charges are not metered. 8. The Division Bench of the Kerala High Court heard all the consumers concerned and held as under: "7.16. Accordingly, in Para. 87 of the judgment in Seetharam Rice Mill's case (supra), the Three-Judge Bench of the Apex Court concluded that, wherever the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised use of electricity, the penal assessment contemplated under Section 126 of the Act has 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 sub-section (5). 8.3. In Classic Color Lab's case (supra), it was contended on behalf of the appellant/consumer that, assessment under Section 126 of the Act should 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 Courtin Seetharam Rice Mill's 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 the Act and as such, the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 suchan interpretation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at has been tampered with. The learned Judges of the Calcutta High Court, interpreting Section 126(6) of the Act held 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 Courtdoes 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 the 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 prevailing 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 126 of the Act deals 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 Act. 11. As held by the Apex Court in Seetharam Rice Mill's 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 Act, 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 Act. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Act for the period specified in Section 126(5) and at the rate specified in Section 126(5) of the Act. 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 the Act nor unenforceable, and we hold so. 16. The provisions under Section 126 of the Act underwent a substantial change by the Electricity (Amendment) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted load would be squarely covered under Explanation (b)(iv) to Section 126 of the Act. 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) 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 the Act provides 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. Though Board Order dated 7.2.2008 employs the term 'penalty', what is contemplated under the said order is only assessment o funauthorised 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 Act. In that view of the matter, Board Order dated 7.2.2008 is neither ultra vires the provisions of Section 126 of the Act nor unenforceable, and we hold so. 25. In Seetharam Rice Mill's 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 Class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mers billed on the basis of connected load' at the end of that sub-regulation. Such an amendment was made when itwas 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 o felectricity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orised use of electricity in the premises of a consumer is not a mandatory requirement for initiating assessment proceedings under Section 126(1) of the Act. (ii) The expression 'unauthorised use of electricity' under Section 126 of the Act deals 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 Act. (iii) Whenever a consumer commits the breach of the terms of the agreement, Regulations and the provisions of the Act 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 Act. (iv) The term 'tariff' in Section 126(6) of the Act includes 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). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) and at the rate specified in Section 126(5) of the Act. As such, the said Board Order is neither ultra vires the provisions of Section 126 of the Act nor unenforceable." (Emphasis supplied) 10. Thus, the High Court, as evident from para 31(vi) as above, took the view that 'unauthorised additional load' in the same premises and under the same tariff shall not be reckoned as 'unauthorised use of electricity' except in cases of consumers billed on the basis of the connected load. The High Court took such view, relying upon Regulation 153(15) of the Kerala Electricity Supply Code, 2014 (for short, 'the Code 2014'). 11. The appellant Board being dissatisfied with the judgment and order passed by the High Court, preferred review applications in the individual writ petitions filed by the consumers. The review applications also came to be rejected, wherein, the High Court held as under: "10. What follows from the above is that, in order to come within the purview of clause (vi) of Para.31 of the judgment, a consumer who is blamed with overdrawal of electricity in excess of sanctioned/connected load must satisfy the following conditions; (i) Such overdrawal of electricity should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other v. Sri Seetaram Rice Mill reported (2012) 2 SCC 108, wherein, this Court in clear terms has said that cases of excess load consumption other than the connected load would fall within the Explanation (b)(iv) to Section 126 Act 2003. 16. The learned Senior Counsel would argue that this Court in Seetaram Rice Mill (supra) has said so many words that Section 126 of the Act 2003 is a complete code in itself. Consumption in excess of sanctioned/connected load is unauthorised use under Section 126 of the Act 2003. Such an act of consumption in excess of the sanctioned/connected load is prejudicial to the public at large, as the same would affect the entire system. 17. The learned Senior Counsel further submitted that the finding of the High Court in para 31(vi) of the impugned judgment is erroneous and if upheld may result in the entire collapse of the grid. He would argue that the appellant Board needs to plan its affairs and ensure that it is able to supply the required electricity to its consumers. The connected load/contracted load ensures that the Board knows how much electricity is to be supplied to each consumer. 18. The learned senior counsel further submitted that the ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation and regularisation of unauthorised additional load. The regulation defines the threshold for the additional loads to be considered as unauthorised additional load. It is also provided that the licensee may, suo motu or on an application from the consumer, regularise such additional load mentioned in clause (a) and clause (b) of Regulation 153(4). 3. Regulation 153(15) provides further that the unauthorised additional load in the same premises and under the same tariff shall not be reckoned as unauthorised use of electricity, except in the case of consumers billed on the basis of connected load. Regulation 153(15) of the Code 2014 has undergone amendment by way of the Kerala Electricity Supply (Amendment) Code 2016, which came into force on 04.02.2016, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. This Court has emphasised that the Legislature and its delegate are the sole repositories of the power to take decisions. Further, there is no scope of interference by the Court unless the particular provision impugned suffers from (i) any legal infirmity, or (ii) being wholly beyond the scope of regulation-making power, or (iii) being inconsistent with any of the provisions of the parent enactment. The impugned judgment of the High Court correctly read and applied the law in the light of the settled judicial position. 8. The stance of the appellant Board that the regularisation is ultra vires, is against its very own Full Board decision. A Full Board of the KSEB, as early as on 27.07.2002 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 following manner: (i) [...] (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucture does not allow for the excess load of a consumer to be regularised or the contract demand to be enhanced, such consumers are required to disconnect such load or restrict their demand to the contract limit, failing which supply of electricity can be disconnected. Therefore, the Code 2014 and the Tariff Order adequately address concerns of both (i) revenue loss; and (ii) infrastructural constraints in cases of excess load / excess demand. The exception is where such excess load/ excess demand results in change of purpose or change of tariff, in which case, it would fall within the ambit of Section 126 of the Act 2003. It is relevant to point out that there is no challenge to the vires of any of the provisions of the Code 2014 in the present proceedings. 24. It is further submitted that the observations of this Court in Seetaram Rice Mill (supra) were made specifically in the context of the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Regulations, 2004 and the Standard Agreement Form for Supply of Electrical Energy by the Grid Corporation of Orissa Ltd. The observations made in the said judgement cannot be uniformly applied to the present matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court other than para 31(vi). 29. Before adverting to the rival submissions canvassed on either side, we must look into the scheme and various relevant provisions of the Act 2003 as well as the Code 2014 framed by the Commission in exercise of the powers conferred by the Section 50 read with Section 181 of the Act 2003. ELECTRICITY ACT, 2003 30. Before the enactment of the Act 2003, the Indian electricity sector was governed by the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998. The Indian Electricity Act, 1910 created a basic framework for the electricity supply industry in India. The Electricity (Supply) Act, 1948 mandated the creation of State Electricity Boards, which had the responsibility of facilitating supply of electricity within states. However, the State Electricity Boards were unable to use their power to fix tariffs judiciously. It was noted that the State Governments were in practice fixing tariffs. To distance the State Governments from the exercise of tariff fixation, the Electricity Regulatory Commissions Act, 1998 was enacted. 31. Parliament enacted the Act 2003 to consolidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll prepare a National Electricity Plan in accordance with the National Electricity Policy and notify such plan once in five years: Provided that the Authority while preparing the National Electricity Plan shall publish the draft National Electricity Plan and invite suggestions and objections thereon from licensees, generating companies and the public within such time as may be prescribed: Provided further that the Authority shall - (a) notify the plan after obtaining the approval of the Central Government; (b) revise the plan incorporating therein the directions, if any, given by the Central Government while granting approval under clause (a). (5) The Authority may review or revise the National Electricity Plan in accordance with the National Electricity Policy." In terms of the above provision, the Union Government has to formulate the National Electricity Policy and National Tariff Policy, in consultation with the State Governments and the Central Electricity Authority. 34. Part III of the Act 2003 deals with the generation of the electricity; Part IV deals with licensing; Part V with transmission; Part VI with distribution and Part VII with tariff. 35. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction for the transmission and supply of electricity. 38. Section 14 of the Act 2003 envisages that the Appropriate Commission, defined in Section 2(4) to mean the Central or as the case may be the State Regulatory Commission, may grant a licence to any person: (a) to transmit electricity as a transmission licensee; or (b) to distribute electricity as a distribution licensee; or (c) to undertake trading in electricity as an electricity trader, in any area as may be specified in the licence. 39. Section 15 of the Act 2003 prescribes the procedure to be followed for the grant of licence. The application for a licence under Section 14 has to be filed in such a form and in such manner as may be prescribed by the Appropriate Commission. The person who has applied for the grant of a licence must publish a notice of the application. The licence shall not be granted by the Appropriate Commission until the objections, if any received, are considered by the Appropriate Commission. The application shall also be forwarded to the CTU or the STU, as the case may be. The CTU or STU must send its recommendations to the Appropriate Commission. The recommendations of the CTU or the STU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The same reads thus: "50. The Electricity Supply Code.-The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters." 43. Section 126 falls in Part XII of the Act 2003. Part XII is in regard to investigation and enforcement. Section 126 provides for assessment. Section 126 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx xx (2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of the following matters, namely:- xx xx xx (x) electricity supply code under section 50;...." 45. We shall now look into the Code 2014. Regulation 1 reads thus: "1. Short title, extent and commencement. - (1) This Code shall be called the Kerala Electricity Supply Code, 2014. (2) This Code shall be applicable to,- (i) all distribution licensees including deemed licensees and all consumers and users in the State of Kerala; and (ii) all other persons and institutions who are exempted under Section 13 of the Act. (3) It shall come into force with effect from the first day of April, 2014." 46. Regulation 2 provides for the definitions. The phrase 'contracted connected load' as defined under Regulation 2(27) reads thus: "2. Definitions. - In this Code, unless it is repugnant to the context,- xx xx xx (27) "contracted connected load" means 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 said agreement or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii. un-interrupted power supply equipment (UPS), switch mode power supply system (SMPS), transformer, voltage stabilizer, inverter, rectifier and measuring devices: Provided that the rated capacities of the equipment and apparatus connected to the UPS or SMPS or voltage stabilizer or inverter or rectifier shall be considered for computation of the connected load. (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. (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. (c) The licensee may, suo motu or on application from the consumer, regularise such additional load mentioned in clause (a) and clause (b) above. (5) When the load in excess of sanctioned load exceeds the limit as provided in subregulation (4) above, the entire load in excess of the sanctioned load shall be treated as unauthorised additional load, if express sanction or deemed sanction under clause (c) of subregulation (4) has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted load or enhancement of contract demand will not necessitate enhancement of voltage level of supply or upgradation of the existing distribution system or both. (12) 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. (13) The regularisation of unauthorised additional load as per the subregulations (9) and (10) above shall be subject to realisation of a fee at the rates notified by the Commission in schedule 1 of the Code. (14) The provisions relating to unauthorised additional load in subregulations (1) to (13) above shall not be applicable to any domestic consumer if his total connected load including the additional load detected is of and below 10kW. (15) Unauthorised additional load in the same premises and under same tariff shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanctioned and connected load, such consumer would be "in blame and under liability" within the ambit and scope of Section 126 of the 2003 Act. 2. The expression "unauthorised use of electricity means" as appearing in Section 126 of the 2003 Act is 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 Act. The cases of excess load consumption than the connected load inter alia would fall under Explanation (b)(iv) to Section 126 of the 2003 Act, besides it being in violation of Regulations 82 and 106 of the Regulations and terms of the Agreement. 3. In view of the language of Section 127 of the 2003 Act, only a final order of assessment passed under Section 126(3) is an order appealable under Section 127 and a notice-cum-provisional assessment made under Section 126(2) is not appealable. 4. Thus, the High Court should normally decline to interfere in a final order of assessment passed by the assessing officer in terms of Section 126(3) of the 2003 Act in exercise of its jurisdiction under Article 226 of the Constitution of India. 5. The High Court did not commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, become a code in themselves. 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. Xxx xxx xxx 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 Act. 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 126 of the 2003 Act. Xxx xxx xxx 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. Xxx xxx xxx 60. The expressions "means", "means and includes" and "does not include" are expressions of different connotation and significance. When the legislature has used a particular expression out of these three, it must be given its plain meaning while even keeping in mind that the use of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try" under Regulation 80(10) if it relates to supply of power to an industry with a contract demand of 110 kVA and above but below 25,000 kVA. 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 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. 66. Regulation 106 of the Conditions of Supply reads as under: "106. No consumer shall make use of power in excess of the approved contract demand or use power for a purpose other than the one for which agreement has been executed or shall dishonestly abstract power from the licensee's system." 67. On the cumulative reading of the terms and conditions of supply, the contract executed between the parties and the provisions of the 2003 Act, we have no hesitation in holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed only to be rejected. Xxx xxx xxx 87. Having dealt with and answered determinatively the questions framed in the judgment, we consider it necessary to precisely record the conclusions of our judgment which are as follows: 1. Wherever the consumer commits the breach of the terms of the Agreement, Regulations and the provisions of the Act 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 2003 Act. 2. The expression "unauthorised use of electricity means" as appearing in Section 126 of the 2003 Act is 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 Act. The cases of excess load consumption than the connected load inter alia would fall under Explanation (b)(iv) to Section 126 of the 2003 Act, besides it being in violation of Regulations 82 and 106 of the Regulations and terms of the Agreement...." 54. The principles of law discernible from the aforesaid may be summarised as under: (1) The provisions of Section 126, read with Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctricity in excess of the sanctioned/connected load shall be an 'unauthorised use of electricity' in terms of Section 126 of the Act 2003. According to us, the observations made by this Court in Seetaram Rice Mill (supra) as contained in para 67 goes to the root of the matter. Seetaram Rice Mill (supra) in para 67 has said in so many words 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. This aspect of the matter has been completely overlooked by the High Court. It is not just a matter of overdrawal of electricity in excess of sanctioned/connected load in the very same premises and for the very same purpose, which does not involve any change in the tariff applicable for the relevant category of services. The tariff applicable may remain the same; the overdrawal may be in the same premises and for the very same purpose, there may not be any loss of revenue but it may lead to a disastrous situation being pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Punjab and Haryana High Court whereby it had dismissed the writ petition filed by the appellant therein against the order of Ombudsman, Electricity, Punjab who in turn reversed the decision of the Disputes Settlement Authority and directed refund of the amount recovered from the respondent therein towards Advance Consumption Deposit (ACD) service connection charges and load sur charge. In para 13, 14 and 15 this Court observed as under: "13. We have considered the arguments of the learned counsel and agree with him that in the absence of any provision in the Act or the Regulations framed by the appellant, the Ombudsman committed jurisdictional error by directing regularisation of unauthorised use of electricity by the respondent and refund of the alleged excess amount charged by the appellant. 14. The fact that the appellant could not release connection with a load of 2548 kW on account of non-availability of transformer necessary for transfer of 8 MVA load from 66 kV Sub-Station, GT Road, Ludhiana had no bearing on the issue of consumption of electricity by the respondent beyond the sanctioned load. Undisputedly, in terms of the request made by the respondent, the Chief E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: "50. The Electricity Supply Code.-The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters." 54. From reading Section 50, it is clear that under the Electricity Supply Code provisions are to be made for recovery of electricity charges, billing of electricity charges, disconnection, etc. and measures for preventing tampering, distress or damage to the electrical plant or line or meter, etc. But the said Code need not provide provisions relating to it/do not relate to assessment of charges for "unauthorised use of electricity" under Section 126 or action to be taken against those committing "offences" under Sections 135 to 140 of the Electricity Act, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may refer with profit to the decision in General Officer Commanding-in-Chief and Another v. Dr. Subhash Chandra Yadav and Another reported in (1988) 2 SCC 351, wherein it has been held as follows:- "14. ....before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void....." 67. In Additional District Magistrate (Rev.) Delhi Admn. v. Siri Ram reported in (2000) 5 SCC 451, it has been ruled that it is a well recognised principle that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. 68. In Sukhdev Singh and Others v. Bhagatram Sardar Singh Raghuvanshi and Another reported in (1975) 1 SCC 421, the Constitution Bench has held that: "18. .... These statutory bodies cannot use the power to make rules and regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission (Procedure, Terms and Conditions for Grant of Trading Licence and other Related Matters) Regulations, 2004. In that context, this Court expressed as under:- "25. It is now a well-settled principle of law that the rule-making power "for carrying out the purpose of the Act" is a general delegation. Such a general delegation may not be held to be laying down any guidelines. Thus, by reason of such a provision alone, the regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act. 73. In the aforementioned case, while discussing further about the discretionary power, delegated legislation and the requirement of law, the Bench observed thus: "73. The image of law which flows from this framework is its neutrality and objectivity: the ability of law to put sphere of general decision-making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of "legal security" by assuring that law is knowable, dependable and shielded from excessive manipulation. In the contest of rulemaking, delegated legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry detail. All it can in practice do is to lay down the outline. This means that the intention of the legislature, as indicated in the outline (that is the enabling Act), must be the prime guide to the meaning of delegated legislation and the extent of the power to make it. The true extent of the power governs the legal meaning of the delegated legislation. The delegate is not intended to travel wider than the object of the legislature. The delegate's function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention. Power delegated by an enactment does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provision. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary its ends. (See Section 59 in chapter "Delegated Legislation" in Francis Bennion's Statutory Interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinating legislative functions, or, what is fictionally called, a power to fill up details. 81. A Constitution Bench of this Court in the case of Sukhdev Singh (supra), while explaining the fine distinction between a rule and regulation and also the power of the delegate authority to frame such rules or regulations has made few very important observations which we must take notice of and quote as under: "11. The contentions on behalf of the employees are these. Regulations are made under the statute. The origin and source of the power to make regulations is statutory. Regulations are selfbinding in character. Regulations have the force of law inasmuch asthe statutory authorities have no right to make any departure from the regulations. 12. Rules, regulations, schemes, bye-laws, orders made under statutory powers are all comprised in delegated legislation. The need for delegated legislation is that statutory rules are framed with care and minuteness when the statutory authority making the rules is after the coming into force of the Act in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of the statute. Rules and regulations have been distinguished from orders or determination of statutory bodies in the sense that the orders or determination are actions in which there is more of the judicial function and which deal with a particular present situation. Rules and regulations on the other hand are actions in which the legislative element predominates. xx xx xx 136. The regulations framed under the regulation-making power conferred by the three Acts in question are not the regulations as defined in the General Clauses Act. In interpreting Indian statutes it is unnecessary and might sometimes be misleading to refer to the provisions of English law in connection with subordinate legislation. We have to refer only to the General Clauses Act and the Indian legislative practice. Though "rule" is defined as including a regulation made as a rule, it cannot be said that regulation-making power conferred on the three organisations in question is a rule-making power. Under the legislative practice in India the rule-making power is conferred on the State and the power to make regulations is conferred on bodies or organisations created by the statute. xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total amount assessed for all the three years referred to above, came to Rs.59,69,39,373/- (Rupees Fifty Nine Crore Sixty Nine Lakh Thirty Nine Thousand Three Hundred and Seventy Three only). 85. In addition to the above, an amount of Rs. 41,14,858/- (Rupees Forty One Lakh Fourteen Thousand Eight Hundred and Fifty Eight only) and Rs.1,42,09,148/- (Rupees One Crore Forty Two Lakh Nine Thousand and One Hundred Forty Eight only) were assessed during the years 2015-16 and 2016-17 resply, by Regional Audit Office (RAO) Inspection. 86. We are really taken by surprise that despite the aforesaid, the High Court while rejecting the review applications declared that the regularisation of additional connected load or enhancement of contract demand should not necessitate upgradation of the existing distribution system. 87. At this stage, we may also refer to Section 45(3)(a) of the Act 2003. The same reads thus: "45. Power to recover charges. ─ xx xx xx (3) The charges for electricity supplied by a distribution licensee may include─ (a) a fixed charge in addition to the charge for the actual electricity supplied;" 88. A plain reading of Section 45(3)(a) of the Act 20 ..... 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