Kerala High Court
K.P. Jayapalan vs Kerala State Electricity Board
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY, THE 23RD DAY OF NOVEMBER 2012/2ND AGRAHAYANA 1934
WP(C).No. 16315 of 2006 (P)
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PETITIONER(S):
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K.P. JAYAPALAN, PROPRIETOR,
JAYBEES THREAD PRODUCTS, CHOORAL, P.O. MATHIL
KANNUR DISTRICT.
BY ADV. SRI.P.M.PAREETH
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY, VIDHYUTHI BHAVANAM
PATTOM, THIRUVANANTHAPURAM.
2. DEPUTY CHIEF ENGINEER,
ANTI POWER THEFT SQUAD, KERALA STATE
ELECTRICITY BOARD, KOZHIKODE.
3. ASSISTANT ENGINEER,
ELECTRICAL SECTION, VELLORE, P.O. KONDOTH
KANNUR DISTRICT.
R1-3 BY ADVS. SMT.P.K.RADHIKA-KSEB
SRI. P.P THAJUDEEN,SC,KSEB(BY ORDER)
SRI.JOSE J.MATHEIKEL, SC, KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23-11-2012, ALONG WITH WPC. 24033/2009, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No. 16315 of 2006 (P)
APPENDIX
PETITIONERS' EXHIBITS
EXT. P1 PHOTOCOPY OF THE SITE MAHAZAR DATED 29.12.05 PREPARED BY THE
SUB ENGINEER IN THE OFFICE OF THE THIRD RESPONDENT.
EXT. P2 PHOTOCOPY OF THE PENAL DEMAND DATED 30.12.05 FOR
RS.3,45,163/-.
EXT. P3 PHOTOCOPY OF THE APPEAL DATED 19.1.06 FILED BY THE
PETITIONER BEFORE THE DEPUTY CHIEF ENGINEER, APTS,
THIRUVANANTHAPURAM.
EXT. P4 PHOTOCOPY OF THE RECEIPT DATED 16.1.06 FOR RS.1,15,724/-
ISSUED BY THE OFFICE OF THE THIRD RESPONDENT.
EXT. P5 PHOTOCOPY OF THE RECEIPT DATED 17.2.06 FOR RS.51,285/-
EXT. P6 PHOTOCOPY OF THE STATEMENT DATED 19.4.06 SUBMITTED BY THE
PETITIONER BEFORE THE SECOND RESPONDENT.
EXT. P7 PHOTOCOPY OF THE PROCEEDINGS DATED 31.5.06 ISSUED BY THE
THIRD RESPONDENT AND RECEIVED BY THE PETITIONER ON 19.6.06.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P. A. TO JUDGE
Pn
C.K. ABDUL REHIM, J.
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W.P.(C). Nos. 16315 of 2006 &
24033 of 2009
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Dated this the 23rd day of November, 2012
JUDGMENT
In WP(C) No. 16315/2006, the petitioner is challenging Exhibit P2 order of penalty imposed under Section 126 of the Electricity Act 2003, which was confirmed by the appellate authority in Exhibit P7 order. WP(C) No. 24033/2009 is filed when revenue recovery steps were initiated for realisation of the amount of penalty ignoring the order of interim stay granted, pending disposal of the 1st writ petition. It is evident that by virtue of interim orders issued, the revenue recovery steps were kept in abeyance. The main issue surviving for consideration is regarding sustainability of Exhibit P2 bill for penalty confirmed in Exhibit P7 appellate order.
2. Penalty under Section 126 was imposed pursuant to an inspection conducted at the industrial premises of the petitioner by the Anti Power Theft Squad (APTS) on W.P.(C). Nos. 16315 of 2006 & 24033 of 2009 -2- 29.12.2005. During the inspection it was detected that the led seals affixed on the Meter Box does not carry any impression of the Electricity Board and it was seen in such a position that it can be easily removed. When the Meter was tested it was revealed that the Meter Disc in one of the phases was rotating on the reverse direction. This was detected as due to wrong connection of wires at the CT Terminal. On the basis of the findings as above, penalty was imposed on the basis of a conclusion that the consumer had replaced the seals affixed by the authorities of the K.S.E.B. and connected wires in such a manner that actual consumption will not be recorded in the Meter. In the Mahazar it was specifically stated that the authorities found that the Meter was recording only 1/3rd of the actual consumption.
3. Eventhough various contentions were raised before the appellate authority disputing correctness of the Mahazar and refuting allegations of tampering, the said authority had W.P.(C). Nos. 16315 of 2006 & 24033 of 2009 -3- arrived at a conclusion on the basis of various factual aspects and materials on record that the petitioner had committed tampering of the Meter, and that the actual consumption was not recorded during the relevant time. Inspite of the vehement contentions raised, I do not find any reason to interfere with the finding arrived by the appellate authority on the above said aspect. This court cannot interfere in the conclusions arrived by fact finding authorities, unless any convincing materials are produced to prove otherwise or it is shown that the authorities had acted in a totally illegal or erroneous manner or that the findings are totally perverse. Since no such materials are produced, I do not find any reason to interfere with findings of the authorities that there occurred tampering of the Meter and that the Meter was not recording actual consumption.
4. Another point raised is regarding correctness of the computations. It is evident from Exhibit P2 that back assessment was made for a period of 6 months and energy W.P.(C). Nos. 16315 of 2006 & 24033 of 2009 -4- consumed was charged at 1.5 times at normal tariff, after giving credit to consumption already recorded in the Meter. But learned counsel for the petitioner had pointed out that, for quantifying the energy consumed for previous 6 months, the respondent had adopted a totally imaginary method, which is not sustainable. Learned standing counsel appearing for the respondent, on instructions submitted that, the consumption is calculated on the basis of total connected load and on the basis of a presumption that the total connected load will be consuming energy for 8 hours per day for 24 days in a month at a load factor to 0.85. But, specific allegations in the Mahazar is to the effect that, due to the tampering, the Meter Disc in one of the phases was running on reverse direction, and the Meter was recording only 1/3rd of the actual consumption. That being so, there is no scope or need for any imaginary calculation of the consumption.
5. Section 126 of the Electricity Act, 2003 enables the W.P.(C). Nos. 16315 of 2006 & 24033 of 2009 -5- 'Authorised Officer' to make a best judgment assessment of the "electricity charges payable". Sub Section (5) of Section 126 says that the assessment shall be made for the entire period during which the unauthorised use of electricity has taken place. It further says that if the period during which the unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months (6 months at the relevant time) immediately preceding the date of inspection. Further, Sub Section (6) says that such assessment shall be made at the rate equal to twice (1.5 at the relevant time) of the tariff applicable to the relevant category. From the above provisions it is clear that assessment should be with respect to "electricity charges payable". "Electricity charges payable" means charges payable by consumer for the consumption. On the facts of the case at hand it is evident that, specific allegation was that only 2/3rd of the energy consumed was recorded in the Meter. Therefore total consumption of the petitioner for W.P.(C). Nos. 16315 of 2006 & 24033 of 2009 -6- the last 6 months can easily be ascertained by adding 1/3rd towards the escaped consumption. Therefore I am of the view that the method of calculation adopted for imposition of penalty is patently erroneous.
6. Standing counsel submitted that the method of presumptive calculation is adopted on the basis of guidelines issued by the Board. But I am of the opinion that, going by the specific provisions contained in Section 126, such an imaginary or presumptive computation was not necessary in this case, because the consumption of energy during the relevant period was clearly ascertainable. For imposing panalty under Section 126 of the Electricity Act 2003, the 'Authorised Officer' is not entitled to depend on any presumptive or imaginary computations for ascertaining the "electricity charges payable" if by actual consumption during such period is ascertainable by any means. Therefore I am of the opinion that the computation of penalty contained in Exhibit P2 bill is liable to be revised. W.P.(C). Nos. 16315 of 2006 & 24033 of 2009 -7-
7. Under the above mentioned circumstances, WP(C) No. 16315/2006 is disposed of quashing Exhibit P2 and P7 to the extent of the quantum of penalty imposed. The 3rd respondent is directed to issue revised demand imposing penalty on the basis of fresh computations to be made bearing in mind the observations contained herein above. Penalty should be imposed at 1.5 times on the total consumption for a period of 6 months by adding 50% of the recorded consumption, after giving credit to the charges already paid during the said period.
8. While making demand, the amounts already paid towards penalty shall be given credit. Needless to observe that excess payments if any shall be refunded/adjusted. The needful steps in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.
9. In view of decision rendered in WP(C) No. 16315/2006, the relief sought for in WP(C) No. 24033/09 has W.P.(C). Nos. 16315 of 2006 & 24033 of 2009 -8- become infructuous. It is observed that no further steps of recovery shall be proceeded until the penalty is revised and finalised in accordance with the directions contained herein above.
Sd/-
C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn