Kerala High Court
P.P.Ibrahim vs Kerala State Electricity Board on 10 September, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938
WP(C).No. 15749 of 2008 (Y)
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PETITIONER:
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P.P.IBRAHIM
CONSUMER NOS.1389 & 1375,
DWARAKA TOURIST HOME, PAYYANNUR.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY THE SECRETARY,
VYDHUDHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM.
2. THE DEPUTY CHIEF ENGINEER (APTS),
VYDHUDHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM.
3. THE ASST.EXECUTIVE ENGINEER,
ELECTRICAL MAJOR SECTION,
PAYYANNUR, KANNUR.
BY SRI.P.SANTHALINGAM (SENIOR ADVOCATE)
ADV. SRI.S.SHARAN, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C).No. 15749 of 2008 (Y)
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APPENDIX
PETITIONERS' EXHIBITS:
EXT. P1 : TRUE COPY OF THE APPLICATION FOR POWER ALLOCATION IN
RESPECT OF CONSUMER NO.1389.
EXT. P2 : TRUE COPY OF THE APPLICATION FOR POWER ALLOCATION IN
RESPECT OF CONSUMER NO.1375.
EXT. P3 : TRUE COPY OF THE BILL NO.154902 DATED 10.9.2002 FOR
RS.3,16,373/-
EXT. P4 : TRUE COPY OF THE BILL NO.154903 DATED 10.9.2002 FOR
RS.44,794/-
EXT. P5 : TRUE COPY OF THE NOTIFICATION DATED 16.11.1998.
EXT. P6 : TRUE COPY OF THE RECEIPT DATED 14.6.2001 FOR RS.4500/-
AND RS.19,000/- ISSUED IN FAVOUR OF CONSUMER NO.1389.
EXT. P7 : TRUE COPY OF THE COMMUNICATION DATED 14.3.2001 ISSUED
BY THE 3RD RESPONDENT.
EXT. P8 : TRUE COPY OF THE INTERIM ORDER IN C.M.P.NO.46933/2002
IN O.P.NO.27433/02 DATED 25.9.2002.
EXT. P9 : TRUE COPY OF THE JUDGMENT IN O.P.NO.27433/2002
DATED 23.6.2006.
EXT. P10 : TRUE COPY OF THE B.O.(FB) NO.2710/2006)LA.V/2309/2004)
DATED 4.11.2006.
EXT. P11 : TRUE COPY OF THE BILL AND COMMUNICATION RECEIVED ON
22.1.07 IN RESPECT OF CONSUMER NO.1375.
EXT. P12 : TRUE COPY OF THE BILL AND COMMUNICATION RECEIVED ON
22.1.07 IN RESPECT OF CONSUMER NO.1389.
EXT. P13 : TRUE COPY OF THE DEMAND FOR RS.75000/- ISSUED BY THE
RESPONDENTS.
EXT. P14 : TRUE COPY OF THE RECEIPTS FOR PAYMENT OF RS.75000/-.
EXT. P15 : TRUE COPY OF THE BILL DATED 15.4.2008.
EXT. P16 : TRUE COPY OF THE BILL DATED 15.3.2008.
EXT. P17 : TRUE COPY OF THE BILL DATED 15.5.2008.
EXT. P18 : TRUE COPY OF THE DEMAND FOR RS.27,000/-
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WP(C).No. 15749 of 2008 (Y)
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EXT. P19 : TRUE COPY OF THE BILL DATED 15.5.2008 FOR CONSUMER
NO.1375.
EXT. P20 : TRUE COPY OF THE BILL DATED 15.6.2008 FOR RS.66,300/-.
EXT. P21 : TRUE COPY OF THE BILL DATED 15.6.2008 FOR RS.23,450/-.
EXT. P22 : TRUE COPY OF THE BILL FOR RS.22,657/-.
EXT. P23 : TRUE COPY OF THE BILL FOR RS.70,253/-.
EXT. P24 : TRUE COPY OF THE BILL FOR RS.20,266/-.
EXT. P25 : TRUE COPY OF THE BILL FOR RS.1,03,900/-.
EXT. P26 : TRUE COPY OF THE BILL FOR RS.22,240/-.
EXT. P27 : TRUE COPY OF THE BILL FOR RS.26,906/-.
EXT. P28 : TRUE COPY OF THE BILL FOR RS.29,485/-.
EXT. P29 : TRUE COPY OF THE BILL FOR RS.74,483/-.
EXT. P30 : TRUE COPY OF THE BILL FOR RS.24,306/-.
EXT. P31 : TRUE COPY OF THE BILL FOR RS.71,560/-.
EXT. P32 : TRUE COPY OF THE BILL FOR RS.25,345/-.
EXT. P33 : TRUE COPY OF THE BILL FOR RS.71,512/-.
EXT. P34 : TRUE COPY OF THE BILL FOR RS.26,802/-.
EXT. P35 : TRUE COPY OF THE BILL FOR RS.72,718/-.
EXT. P36 : TRUE COPY OF THE BILL FOR RS.25,196/-.
EXT. P37 : TRUE COPY OF THE BILL FOR RS.64,426/-.
EXT. P38 : TRUE COPY OF THE BILL FOR RS.27,940/-.
EXT. P39 : TRUE COPY OF THE BILL FOR RS.72,276/-.
EXT. P40 : TRUE COPY OF THE BILL FOR RS.27,556/-.
EXT. P41 : TRUE COPY OF THE BILL FOR RS.77,210/-.
EXT. P42 : TRUE COPY OF THE BILL FOR RS.25,565/-.
EXT. P43 : TRUE COPY OF THE BILL FOR RS.75,679/-.
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WP(C).No. 15749 of 2008 (Y)
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EXT. P44 : TRUE COPY OF THE BILL FOR RS.13,434/-.
EXT. P45 : TRUE COPY OF THE BILL FOR RS.22,868/-.
EXT. P46 : TRUE COPY OF THE COMMUNICATION DATED 31.5.2016.
EXT. P47 : TRUE COPY OF THE RECEIPT DATED 25.6.2016 ISSUED BY THE
BOARD.
RESPONDENTS' EXHIBITS:
EXT. R1A : TRUE COPY OF THE METER READING REGISTER IN RESPECT OF
CONSUMER NO.1389.
EXT. R1B : TRUE COPY OF THE METER READING REGISTER IN RESPECT OF
CONSUMER NO.1375.
//TRUE COPY//
P.S. TO JUDGE
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P.V.ASHA, J.
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W.P(C) No.15749 of 2008-Y
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Dated this the 28th day of October, 2016
JUDGMENT
The petitioner challenges the bills issued to him subsequent to the inspection by the Anti Power Theft Squad (`APTS' for short) of the Kerala State Electricity Board (`Board' for short), alleging that his applications for regularisation were not considered properly, as per Ext.P5 amendment brought about to regulation 42(d) of the Conditions of Supply of Electrical Energy, 1990, by which the penal charges are payable only till the date of payment of additional security deposit. According to the petitioner, Exts.P1 and P2 applications were submitted as early as on 16.4.2002 and 23.7.2002 in respect of the consumer numbers 1389 and 1375 respectively.
2. The petitioner is conducting a bar hotel and a tourist home and he has got 2 electrical connections with consumer Nos.1389 and 1375. On 24.11.2001 the APTS conducted an inspection and found excess connected load. Accordingly, Exts.P3 and P4 bills were issued seeing that there was excess load of 15 KW in respect of consumer No.1389. As against the W.P(C) No.15749 of 2008-Y 2 total load of 15 KW registered by the consumer, the connected load found by the APTS was 30 KW. Therefore, by Ext.P3 bill a sum of Rs.3,16,373/- was charged as penalty, reckoning the charges for a period of 6 months prior to the date of Ext.P3 bill seeing the unauthorised additional load of 15KW. As per Ext.P4 bill, in respect of consumer No.1375, a sum of Rs.44,794/- was demanded. The additional unauthorised load detected was 3 KW. Accordingly, proportionate charges were demanded for the period upto August, 2002.
3. Aggrieved by the bills issued and the penalty imposed, the petitioner approached this Court in W.P(c).No.27433/2002. The said writ petition was disposed of by judgment dated 23.6.2006, directing the Board to reconsider the issue in the light of the principles laid down by this Court in the judgment in W.A.No.1231 of 2003, setting aside the bills issued therein. During the pendency of this Writ Petition, the respondents continued to issue bills taking into account the unauthorised additional load and the petitioner continued to produce it in this Writ Petition and this Court has issued interim orders from time to time staying disconnection, with direction to remit portion of the bills.
W.P(C) No.15749 of 2008-Y 3
4. The Board issued Ext.P10 order dated 4.11.2006, subsequent to the judgment Ext.P9 whereby the penalty was reduced to 2 times the rate applicable, instead of 3 times. The Board had by its order dated 18.9.2002 decided to discontinue the practise of imposing of penalty on the energy charges in case of detection of unauthorised load. The decision to reduce the penalty to twice was taken in the light of the judgment in Writ Appeal.
5. The petitioner submits that even after Ext.P10 order and the application submitted for regularisation, the respondents continued to issue bills demanding penal charges. Ext.P11 series and P12 series of bills are produced saying that as per Ext.P3, once the applications for regularisation were submitted, no further action can be taken for realising penalty. The petitioner submits that the respondents had demanded additional security deposit of Rs.75,000/- on 18.02.2005 as per Ext.P13 which the petitioner had remitted as per Ext.P14. By Ext.P13 the respondents demanded a sum of Rs.75,000/- towards the average additional security deposit saying that the deposit already remitted was a sum of Rs.19,000/- and there was a shortage of Rs.75,000/- towards the average consumption of the petitioner. W.P(C) No.15749 of 2008-Y 4 Therefore, according to the petitioner since the said amount was already deposited, the respondents cannot realise any more penal charges.
6. The petitioner submits that in respect of consumer No.1375 the petitioner had paid a sum of Rs.30,400/- as additional deposit for excess load and thereafter the respondents had issued a notice Ext.P18 demanding a further sum of Rs.27,000/-, which was withdrawn on production of the receipt for payment of Rs.30,400/-.
7. The petitioner has filed this writ petition challenging Exts.P16, P17 and P19 bills and for a direction to the respondents to issue fresh bills for the months of April and May in respect of both the consumer numbers. He also sought a declaration that since he had already deposited the additional deposit amount on the basis of the demand made by the respondents, the respondents are not authorised to impose penalty any further.
8. The respondents have filed a counter affidavit stating that even though applications were received for regularisation, subsequent to the inspection conducted by the ATPS on 14.6.2001, the petitioner did not complete the formalities. The W.P(C) No.15749 of 2008-Y 5 respondents stated that in the inspection conducted by the ATPS on 24.11.2001, additional load of 15KW was detected in respect of consumer No.1389 and 3 KW with respect to consumer No.1375. Thereafter the petitioner submitted applications for additional load on 12.4.2002 and 23.7.2002. It is further stated that even though the Assistant Engineer intimated the petitioner on 23.5.2002 to remit additional cash deposit of Rs.83,000/- and service connection charges of Rs.4,500/- with respect to the consumer 1389 and additional cash deposit of Rs.35,000/- with respect to 1375 on 14.8.2002, the petitioner did not remit the said amount for regularisation of the additional load. It is their further contention that the petitioner did not submit the application in the prescribed form or completion report for regularising the load even though Ext.P13 notice was issued directing to remit additional cash deposit of Rs.75,000/-.
9. According to the respondents, the application submitted on 12.4.2002 and 23.7.2002 cannot be considered in case the additional deposit was not remitted within a period of one year. The petitioner has to complete the formalities submitting the completion report for regularising the load, apart from the liability to make payment towards additional deposit. W.P(C) No.15749 of 2008-Y 6 However, it is admitted that a sum of Rs.75,000/- was remitted by the petitioner in respect of consumer No.1389, but since there was no fresh application the said deposit could not be considered and the additional load could not be regularised in the absence of completion report or test report. In paragraph 19 of the counter affidavit it is stated that in case the petitioner files the completion report, test report, etc. along with the bills of present load, the load will be regularised immediately.
10. I heard the learned counsel appearing for the petitioner as well as the learned Standing Counsel for the Board. According to the petitioner, he has been making payment on the basis of the demand, ie. at the rate of 30% of the amount due pursuant to the interim order passed by this Court on 30.06.2009. The learned Standing Counsel for the Board submits that the additional deposit which the petitioner refers to is with respect to the average consumption towards additional security and not the additional deposit, since the security deposit originally made was insufficient with reference to the consumption of the electricity. The learned Standing Counsel pointed out that as per regulation No.13, the application for additional load has to be submitted as in the case of application W.P(C) No.15749 of 2008-Y 7 for service connection and he has to submit a completion report, apart from remitting the additional deposit, as provided under clause 8 of Regulation 13 and the application should be accompanied by all the records as provided in Regulation 13 which includes completion report, test report, sketch etc. Clause 9 of Regulation 13 provides that on receipt of the relevant records the Board's officers have to prepare an estimate for giving connection to the consumer and thereafter the Assistant Engineer will direct the consumer to execute the service connection. As per clause 14, the applicant has to deposit the security for payment of monthly current charges after approval of the service connection. However, in paragraph 19 of the counter affidavit, it is admitted that the petitioner has remitted a sum of Rs.75,000/- on 18.2.2005, as per clause 14(a) and (b) of the Terms and Conditions of Supply. Deficiency is with respect to the application for regularisation. However, it is also an admitted fact that the petitioner has submitted an application for regularisation in respect of consumer no.1389 as early as on 12.4.2002. According to the respondents, the period of validity of the applications is only for a period of one year. Since the application was already there and the deposit was also made in W.P(C) No.15749 of 2008-Y 8 respect of consumer No.1389 on 18.2.2005, in the light of Ext.P3 amendment to the regulations, there is no justification in compelling the petitioner to submit applications again.
In these circumstances, the writ petition is disposed of with the following directions:
(i) the respondents shall take necessary action to regularise the additional load in respect of consumer No.1389 of the petitioner, on the basis of Ext.P1 application already submitted on 12.4.2002 without any further delay, treating the date of deposit as the date of application i.e 18.2.2005;
(ii) as it is not clear whether the petitioner has remitted the additional deposit in respect of consumer No.1375, even though a sum of Rs.30,400/- was seen remitted as per Ext.P18, the respondent shall verify the same and in case the additional deposit is already remitted, the respondents shall take action to regularise the additional load in respect of consumer No.1375 also without any delay, on the basis of Ext.P2 application, treating the date of deposit as the date of application. In case there is no deposit,the petitioner shall be intimated the same within 3 weeks from the date of receipt of a copy of the judgment, W.P(C) No.15749 of 2008-Y 9 in which case the petitioner shall remit the deposit and the respondents shall take action accordingly;
(iii) the petitioner shall also take all necessary steps, like submission of completion report, test report etc. as provided under the regulations and as required by the respondents for the purpose of regularisation in respect of both the consumer numbers, within a period of one month from the date of receipt of a copy of the judgment;
(iv) On such regularisation, the respondents shall revise the bills for the period from 18.2.2005 in respect of the consumer no.1389 and from the date of deposit in the case of the 1375. The shortage or excess in the payments if any shall be adjusted towards the future bills.
Sd/-
(P.V.ASHA, JUDGE) rtr/