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 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 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 vires and cannot be given any effect. Ultra vires may arise in several ways; there may be simple excess of power over what is conferred by the parent Act; delegated legislation may be inconsistent with the provisions of the parent Act or statute law or the general law; there may be noncompliance with the procedural requirement as laid down in the parent Act. [Para 65] [140-B-D]
4. A delegated power to legislate by making rules or regulations ‘for carrying out the purpose of the Act’, is a general delegation without laying down any guidelines; it cannot be exercised so as to bring into existence the substantive rights or obligations or disabilities not contemplated by the provisions of the Act 2003 itself. Rules or regulation cannot 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. [ Paras 78 and 80][144-H; 145-A, D]
5. Regulation 153(15) of the Code 2014 framed by the Commission is inconsistent with Section 126 of the Act 2003. If the Regulation 153(15) is to be given effect, then the same would frustrate the very object of Section 126 of the Act 2003. It is not just the question of loss of revenue. At the cost of repetition, we emphasis on the fact that overdrawal of electricity is prejudicial to the public at large as it may throw out of gear the entire supply system, undermining its efficiency, efficacy and even-increasing voltage fluctuations. [Para 82][148-B-C]
Sukhdev Singh and Others v. Bhagatram Sardar Singh Raghuvanshi and Another (1975) 1 SCC 421 : [1975]
3 SCR 619 – followed.
Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another v. Sri Seetaram Rice Mill (2012) 2 SCC 108 : [2011] 15 SCR 211 – relied on.
Punjab State Electricity Board v. Vishwa Caliber Builders Private Limited (2010) 4 SCC 539; Uttar Pradesh Power Corporation Limited and Others v. Anis Ahmad (2013) 8 SCC 491 : [2013] 13 SCR 388;
Additional District Magistrate (Rev.) Delhi Admn. v. Siri Ram (2000) 5 SCC 451 : [2000] 3 SCR 1019; State of Karnataka and Another v. H. Ganesh Kamath and
Others (1983) 2 SCC 402 : [1983] 2 SCR 665; Kunj Behari Lal Butail and Others v. State of H.P. and Others (2000) 3 SCC 40 : [2000] 1 SCR 1054; St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education and Another (2003) 3 SCC 321 : [ 2003] 1 SCR 975; Global Energy Limited and Another v. Central Electricity Regulatory Commission (2009) 15 SCC 570 : [2009] 9 SCR 22; State of T.N. and Another v. P. Krishnamurthy and Others (2006) 4 SCC 517 : [2006] 3 SCR 396; Pratap
Chandra Mehta v. State Bar Council of Madhya
Pradesh and Others (2011) 9 SCC 573 : [2011] 11 SCR 965; Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Others (2004) 8 SCC
747 : [2004] 5 Suppl. SCR 692; McEldowney v. Forde (1971) AC 632 : (1969) 3 WLR 179 – referred to. “Delegated Legislation” in Francis Bennion’s Statutory Interpretation, 3rd Edn.) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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