High Court Kerala High Court

Captain C.P.Girilal vs Kerala State Electricity Board on 22 June, 2010

Kerala High Court
Captain C.P.Girilal vs Kerala State Electricity Board on 22 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 24644 of 2003(H)


1. CAPTAIN C.P.GIRILAL,
                      ...  Petitioner

                        Vs



1. KERALA STATE ELECTRICITY BOARD,
                       ...       Respondent

2. ASSISTANT EXECUTIVE ENGINEER,

                For Petitioner  :SRI.JACOB MATHEW MANALIL

                For Respondent  :SRI.C.C.THOMAS, SC, K.S.E.B

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :22/06/2010

 O R D E R
                C.K.ABDUL REHIM, J.

                ------------------------------
               W.P.(C).No.24644 of 2003
                ------------------------------

          Dated this the 22nd day of June, 2010


                    J U D G M E N T

———————-

1. The petitioner is challenging Ext.P5 demand

for payment of an amount of Rs.1,03,434/-, towards

penalty on detection of unauthorised additional

connected load. Petitioner is a consumer of Electricity

for running a restaurant, under the 2nd respondent with

Consumer No:1139. According to the petitioner, he has

approached the 2nd respondent during January 2000 for

converting the connection as 3-Phase supply. The 2nd

respondent had introduced one Sri.Mathew John, a

licensed Wireman, to do the necessary wiring and to

complete the required formalities for getting the

connection altered as 3-Phase. It is stated that the

petitioner had paid an amount of Rs.20,100/- to the said

Sri.Mathew John. But he has not done anything as

promised. On 6.3.2000 the petitioner lodged a complaint

W.P.(C).24644/03 -2-

against Sri.Mathew John before the police authorities, a

copy of which is marked as Ext.P1. According to the

petitioner, as a vengeance against the said action,

authorities of 1st respondent Board conducted an

inspection at the premises on 24.3.2000. Based on the

inspection Ext.P2 demand was issued directing the

petitioner to remit a sum of Rs.59,517/- on or before

10.4.2000. Through Ext.P3 the petitioner requested to

furnish split up details of the demand. But such request

was not responded and therefore he submitted Ext.P4

representation to the Chairman of the 1st respondent

Board, in the year 2000 itself. As per the averments in

the writ petition there was no response, but Ext.P5 notice

was issued in July 2003 threatening recovery steps

alleging default in payment of Rs.1,03,434/-. It is

contended that the entire action of the respondents are

totally malafide as it is motivated by extraneous

considerations and since it is taken only to wreak

vengeance against the petitioner because he instituted

criminal complaint against the above said Sri.Mathew

W.P.(C).24644/03 -3-

John.

2. Respondents in their counter affidavit had

produced Ext.R1(a), which is the Mahazar prepared by

the Anti Power Theft Squad (APTS) at the time of

inspection. It contains a list of installations and

Electrical appliances found at the premises. The

Mahazar contains signature of the Manager of the

petitioner, Sri.Deepu. According to the respondents, the

petitioner was using unauthorised additional load of 6

KW. Ext.R1(b) is the notice issued to the petitioner

enclosing Ext.R1(c) bill for penal charges. The amount

demanded in Ext.R1(c) was subsequently corrected and

per Exts.R1(d) and R1(e) were issued for Rs.57,357/-.

Ext.R1(f) is a statement given by the petitioner to the 2nd

respondent conceding that he had already removed the

additional connected load of 6KW and therefore

requesting to refrain from disconnecting the supply. It is

pertinent to note that the date of Ext.R1(f) is 29.3.2000,

whereas according to the petitioner on 29.3.2000 he had

submitted Ext.P3. But the respondent denies receipt of

W.P.(C).24644/03 -4-

any such letter as Ext.P3. On a comparison of the

signature contained in Exts.P3 and R1(f), I am of the

opinion that Ext.R1(f) bears true signature of the

petitioner.

3. It is revealed through the counter affidavit that,

against the demand under Ext.R1(d) the petitioner had

filed a civil suit as O.S.732/2000 before the Munsiff

Court, Thiruvananthapuram and obtained an injunction

against disconnection of supply. But he failed to

prosecute the suit by paying balance court fee and

consequently the suit was dismissed on 26.9.2001, as per

Judgment Ext.R1(i). It is further revealed that the

petitioner had also filed an appeal before the Appellate

Authority, the Deputy Chief Engineer (APTS),

Thiruvananthapuram. Ext.R1(j) is a letter issued by the

said authority requiring the petitioner to pay 25% as pre-

condition for granting stay against realisation of the

amount in dispute, pending disposal of the appeal. The

petitioner was also requested to furnish further

documents and details with respect to the subject matter

W.P.(C).24644/03 -5-

of the appeal. But the petitioner had not pursued that

remedy also, nor had he remitted 25% as demanded.

4. It is evident and clear that the petitioner had

suppressed material facts regarding the steps taken by

him to challenge the impugned demand before the civil

court and before the Appellate Authority. It is evident

that the petitioner has not approached this court with

clean hands revealing all relevant facts on the issue. At

the same time argument of the petitioner is that this

court need to look into the allegations of malafides and

should take note of the manifest injustice done with

respect to raising a high demand of penal charges.

5. With respect to the allegations of malafides,

apart from assertion of the petitioner that the entire

action was instigated due to vengeance, because the

petitioner had initiated criminal action against

Sri.Mathew John, there is nothing on record to show that

the inspection conducted by the APTS was on the basis of

any such action. On the other hand, there is no denial

from the side of the petitioner with respect to the

W.P.(C).24644/03 -6-

unauthorised additional load. As per the provisions

contained in the Conditions of Supply of Electrical

Energy, usage of unauthorised additional load is liable to

be imposed with penalty. If the consumer has got any

dispute regarding the liability or with respect to

correctness of such penal charges imposed, the said

regulations provide for effective appellate remedy. In the

case at hand, the petitioner has chosen to resort to such

remedy by filing appeal. But he failed to pursue the said

remedy. Apart from that he has also impugned the

demand by filing civil suit, which also he failed to pursue.

Further, as stated above, the petitioner had purposefully

suppressed all such material facts in this writ petition.

6. Under the above mentioned circumstances I am

of the opinion that this court is not justified in examining

correctness of the demand or to enter upon any

adjudication on disputed facts regarding basis on which

such demand is raised. Therefore, I am of the considered

opinion that the writ petition could not be entertained

and the same is liable to be dismissed.

W.P.(C).24644/03 -7-

7. However, learned counsel for the petitioner has

brought to my attention a Division Bench decision of this

court in W.A.No:1231/2003 dt.9.11.2005. It is held

therein that in case of detection of unauthorised

connected load, imposition of maximum penalty is

unwarranted in all cases. In other words, when there is

no theft or mischief done with any intention to extort

electrical energy, mere installation of unauthorised

connected load may not invite maximum penalty provided

under the relevant regulations. Considering the dictum

laid in the above said judgment, I am of the opinion that

the petitioner can be given a chance to make

representation before the 1st respondent seeking for re-

consideration of the quantum of penalty imposed.

8. If the petitioner makes any representation as

above to the Secretary of the 1st respondent Board, the

same will be considered and appropriate decision will be

taken by the Secretary, after affording an opportunity of

hearing to the petitioner as early as possible, at any rate

within a period of two months from the date of receipt of

W.P.(C).24644/03 -8-

such representation. It is also left to the petitioner to

move before that authority seeking to keep in abeyance

any coercive steps for recovery till such a decision is

taken.

The writ petition is disposed of with the above

directions.

C.K.ABDUL REHIM, JUDGE.

okb