KERALA STATE ELECTRICITY BOARD & ORS. versus THOMAS JOSEPH ALIAS THOMAS M. J. & ORS.

Citation: [2022] 9 S.C.R. 85 · Decided: 16-12-2022 · Supreme Court of India · Bench: DINESH MAHESHWARI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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KERALA STATE ELECTRICITY BOARD & ORS.
v.
THOMAS JOSEPH
ALIAS THOMAS M. J. & ORS.
(Civil Appeal Nos. 9252-9253 of 2022)
DECEMBER 16, 2022
[DINESH MAHESHWARI AND J. B. PARDIWALA, JJ.]
Electricity Act, 2003: ss.126 and 127 – Unauthorised use of
electricity – Consumption of electricity by consumers in excess of
the connected load/contracted load whether amount to
‘unauthorised use of electricity’ under explanation (b) to s.126(6)
– Held: ss.126 and 127 of the Act constitute a complete code in
themselves – The expression ‘unauthorised use of electricity’ means
as it appears in s.126 – The purpose of s.126 is to ensure stoppage
of misuse/unauthorised use of electricity as well as to ensure
prevention of revenue loss – Consumption of electricity in excess of
sanctioned/connected load in very same premise and for the very
same purpose without change in tariff constitutes ‘unauthorised
use of electricity’ under explanation (b) (iv) to s. 126 of the Act –
Kerala Electricity Supply Code, 2014 – r. 153.
Administrative law: Delegated Legislation – Rule making
power – If a rule goes beyond the rule making power conferred by
the statute, the same has to be declared invalid – If a rule supplants
any provision for which power has not been conferred, it becomes
invalid – The basic test is to determine and consider the source of
power, which is relatable to the rule – A delegated power to legislate
by making rules or regulations cannot be exercised so as to bring
into existence the substantive rights or obligations or disabilities
not contemplated by the provisions of the Electricity Act, 2003.
Kerala Electricity Supply Code, 2014: Regn.153(15) –
Whether Regn.153(15) is ultra vires of s.126 of Electricity Act, 2003
– Held: A rule making body must function within the purview of the
rule making authority conferred on it by the parent Act – The body
making rules or regulations has no inherent power of its own to
make rules, but derives such power only from the statute, it has to
[2022] 9 S.C.R. 85
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SUPREME COURT REPORTS
[2022] 9 S.C.R.
necessarily function within the purview of the statute – If
Regn.153(15) is to be given effect, then the same would frustrate
the very object of s.126 of the Act – Therefore, Regn.153(15) is
invalid on the ground that same is inconsistent with the provisions
of s.126 of the Electricity Act, 2003 – Doctrine of ultra vires.
Allowing the appeals, the Court
HELD: 1. 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 prejudicial to the public at large, as such overdrawal of
electricity in excess of sanctioned/connected load may disturb
the entire supply system, undermining its efficiency, efficacy and
even-increasing voltage demand. High Court have erred in
coming to the conclusion that the consumer cannot be charged
twice the energy charges if the consumer uses 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 the
tariff. [Paras 56 and 58][136-B-C; 137-A-B]
2. It is settled law that the regulation making power cannot
be used to bring into existence substantive rights, which are not
contemplated under the Act 2003. If a rule goes beyond the rule
making power conferred by the statute, the same has to be
declared invalid. If a rule supplants any provision for which power
has not been conferred, it becomes invalid. The basic test is to
determine and consider the source of power, which is relatable
to the rule. Similarly, a rule must be in accord with the parent
statute, as it cannot travel beyond it. [Paras 63 and 64][139-E-H]
3. The doctrine of ultra vires envisages that a rule making
body must function within the purview of the rule making authority
conferred on it by the parent Act. As the body making rules or
regulations has no inherent power of its own to make rules, but
derives such power only from the statute, it has to necessarily
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function within the purview of the statute. Delegated legislation
should not travel beyond the purview of the parent Act. If it does,
it is ultra v

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