Kerala High Court
C.A. Nazer vs Kerala State Electricity Board on 18 March, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938
WP(C).No. 6745 of 2013 (P)
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PETITIONER(S):
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C.A. NAZER, FIFIA TOWERS, NEAR XL HOTEL,
PANAYAPPILLY, FORT KOCHI, PIN - 682 002.
BY ADVS.SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD,
VYDHYUDHI BHAVANAM, PATTOM,
THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY
2. THE DEPUTY CHIEF ENGINEER (APTS),
KERALA STATE ELECTRICITY BOARD, PATTOM,
THIRUVANANTHAPURAM.
3. THE ASSISTANT ENGINEER,
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL SECTION, THOPPUMPADY, ERNAKULAM.
*ADDL. R4 IMPLEADED :
*4. THE DEPUTY CHIEF ELECTRICAL INSPECTOR
OFFICE OF THE DEPUTY CHIEF ELECTRICAL INSPECTORATE,
THOPPIL ESTATE, VYTTILA P.O., KOCHI - 10.
*ADDL. R4 IS SUOMOTU IMPLEADED AS PER ORDER
DT 2/11/2015
R1 TO R3 BY ADV. SRI.JAICE JACOB,SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C).No. 6745 of 2013 (P)
APPENDIX
PETITIONER(S) EXHIBITS :
EXHIBIT P1: TRUE COPY OF THE MAHAZAR DATED 18.03.2002
PREPARED BY THE ANTI POWER THEFT SQUAD
CONSTITUTED BY THE 1ST RESPONDENT.
EXHIBIT P2: TRUE COPY OF THE BILL DATED 18.03.2002
DEMANDING RS.1,36,139/- ISSUED TO THE
PETITIONER.
EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 04.04.2012 IN
W.P.(C)8614/2015 OF THIS HON'BLE COURT.
EXHIBIT P4: TRUE COPY OF THE ODER NO.9/12-13/P-BILL/AE
TPDY/201 DATED 28.01.2013 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P5: TRUE COPY OF THE OBJECTION DATED 14.02.2013 BY
THE PETITIONER SUBMITTED BEFORE THE 3RD
RESPONDENT.
EXHIBIT P6: COPY OF THE COMMUNICATION BEARING NO.
DB/TPDY/GEN/03/6/15/6/15 DT 16/6/2015.
EXHIBIT P7: COPY OF THE RECEIPT DT 27/6/2015.
EXHIBIT P8: COPY OF THE AFORESAID APPLICATION DT 4/7/2015.
EXHIBIT P9: COPY OF THE RECEIPT DT 2/9/2015.
EXHIBIT P10: COPY OF THE SAID APPLICATION SUBMITTED
ON 20/10/2015.
RESPONDENTS' EXHIBITS :
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EXT.R1(A): COPY OF THE ORDER PASSED BY THE DEPUTY CHIEF
ENGINEER DT 11/2/2005.
EXT.R1(B): COPY OF THE SAID PROCEEDINGS ISSUED BY THE
ASSISTANT ENGINEER ALONG WITH COVERING LETTER
AND BILL.
EXT.R1(C): COPY OF THE REPLY LETTER GIVEN BY THE
ASSISTANT ENGINEER.
EXT.R1(D): COPY OF THE ORDER B.O.(FM) NO. 368/2008
WP(C).NO. 6745 OF 2013 (P)
EXT.R1(E): COPY OF THE MAHAZER PREPARED AT THE INSPECTION
ON 6/3/2015.
EXT.R1(F): COPY OF THE PHOTOS TAKEN AT THE TIME OF
INSPECTION.
EXT.R1(G): NOTICE ISSUED TO THE PETITIONER DT 6/3/2015.
//TRUE COPY//
P.A. TO JUDGE
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A.M.SHAFFIQUE, J.
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W.P.(C).No.6745 of 2013
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Dated this the 9th day of June, 2016
J U D G M E N T
The petitioner challenges Ext.P4 order passed by the Assistant Engineer, Electrical Section, Thoppumpady confirming the demand made against the petitioner in terms of Ext.P2 bill.
2. The short facts involved in the writ petition would disclose that the petitioner being a consumer of electricity with Consumer No.14728 was issued with a demand for 1,12,078/- as penalty on the allegation of installation of unauthorised additional load. The Anti Power Theft Squad visited the premises of the petitioner on 18.03.2002 in which it was found that the unauthorised additional load would come to 21 kilo Watts (KW). On this basis, penal bill was raised demanding 1,36,139/-. The matter was challenged on various occasions and finally as per judgment dated 04.04.2012 in W.P(C).No.8614 of 2005, the matter was directed to be considered afresh. However, Ext.P4 order was passed confirming the demand.
3. The petitioner raises two specific issues. First contention is that the issue had become final on account of the observations made by this Court in W.P.(C).No.8614 of 2005, wherein the learned Single Judge referred to judgment of W.A.No.2864 of 2009 holding that conditions of supply, penalty for unauthorised load can be levied only on the fixed charges and not on energy charges. W.P.(C).No.6745 of 2013 2
4. It is further contended that similar matters were considered by the Board on the basis of Board Order dated 18.09.2002 and instead of three times of the charges, it was reduced to two times of the rate applicable. The learned counsel seeks the very same relief as far as the petitioner is concerned.
5. On the other hand the learned Standing Counsel appearing on behalf of the respondent submits on the basis of the counter affidavit filed that the authorities have arrived at a finding in accordance with law. It is also submitted that the authorities have come to the aforesaid finding on the basis of the Rules prevailing during the relevant time and there is no reason to deviate from the said finding. Further it is contended that the petitioner has not removed the unauthorised load so far and still the issue continues, for which it shall be open for the Board to take appropriate action in the matter.
6. Having heard the learned counsel on either side and having perused the records, I am of the view that the judgment in W.P.(C). No.8614 of 2005 does not lay down a mandate that the penalty for unauthorised load can be levied only on fixed charges. Each case will depend upon its own facts and also depends upon the Rules and Regulations which are prevailing at the relevant point of time. It cannot be disputed that during the relevant time, the penalty for W.P.(C).No.6745 of 2013 3 unauthorised load had to be calculated on the basis of clause 42D of the Conditions in Supply of Electric Energy, 1990. Going by the said Rules, I don't find any error in the issuance of Ext.P2 bill or the finding of the authority in terms of Ext.P4.
7. The next contention is with reference to the Board Order dated 04.11.2006. The learned counsel places reliance on the same to contend that by virtue of Board Order dated 18.09.2002, the Board had decided to discontinue the practice of imposing penalty on energy charges in cases of detection of unauthorised additional load. However, the said decision was with effect from 18.09.2002. This is an instance apparently prior to the said date. The learned counsel submits that by Board Order dated 04.11.2006, similar cases had been considered by the Board and concession had been extended by reducing the penalty imposed as per the unamended clause 42D to two times of the rate applicable.
8. Taking into consideration the fact that several persons had been given the benefit of Board order dated 04.11.2006, I am of the view that the petitioner, being a similarly placed person, shall also be given such benefit. Accordingly, there will be a direction to the respondent to compute the penalty on the basis of the Board Order dated 04.11.2006 by reducing the penalty to two times of the rate applicable instead of three times. The payment already made shall W.P.(C).No.6745 of 2013 4 be adjusted towards the demand.
With the above modifications to Ext.P4 order, this writ petition is closed.
Sd/-
A.M.SHAFFIQUE, JUDGE.
AV