IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17929 of 2008(H)
1. K.P.MOHANAN, KADAVATH PURAYIL,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION,
3. ASSISTANT EXECUTIVE ENGINEER,
4. ASSISTANT ENGINEER, ELECTRICAL SECTION,
5. DEPUTY CHIEF ENGINEER,
6. SPECIAL DEPUTY TAHSILDAR,
7. DEPUTY CHIEF ENGINEER, KSEB,
For Petitioner :SRI.P.M.PAREETH
For Respondent :SRI.C.K.KARUNAKARAN, SC FOR KSEB
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :05/10/2010
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.17929/2008-H
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Dated this the 5th day of October, 2010
J U D G M E N T
The petitioner challenges the proceedings Ext.P10 by
which the Appeal Petition filed by him, against the
assessment of unauthorised additional load, has been
rejected confirming the demand.
2. The amount in question, namely, Rs.1,02,724/- plus
surcharge was remitted by the petitioner during the
pendency of the proceedings. Now, what remains is the
claim for refund.
3. It is submitted by the learned counsel for the
petitioner that the petitioner’s Unit is a Small Scale
Industrial Unit with consumer No.18051. Initially,
connected load was 30HP. But the Unit could not start
functioning for various reasons. The petitioner was paying
the monthly minimum current charges in order to maintain
the service connection. The petitioner applied for
additional power allocation and it was granted by providing
15 HP power allocation w.e.f April 2002. A new meter was
installed from 24/03/2003. But, according to him, due to
short circuit it was burnt two days after its improper
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fixing. Ext.P2 is the true photograph produced in support
of the above plea. The situation continued till October,
2004. The petitioner paid monthly demands upto February,
2003 and no payment was made from March, 2003 since no
meter was installed after the burning of the same. But, in
April, 2003 the Sub Engineer of the Section inspected the
Unit and reported that there was an additional load of 18HP
and the monthly demand was to be enhanced from Rs.1035/- to
Rs.2205/-. However, no site mahazar was prepared and the
petitioner was not informed of the alleged inspection also.
It is pointed out that even though 40HP motor was kept in
the premises, that was not connected to the mains and the
allocation of the unauthorised connected load is not
correct. Reliance is placed on Ext.P3 a report dated
29/07/2004 submitted by the third respondent to the second
respondent wherein various aspects have been pointed out.
Ext.P4 is the proceedings whereby he was granted additional
power allocation of 15HP. But even after this he could not
commence production because of various problems. According
to the petitioner there was no meter or connection from
April 2003 to September 2004 and at the end of September,
2004 the meter was changed and he is liable to pay the
charges from October, 2004 to May 2005. Ext.P5 is the
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demand, which was disputed by him in Ext.P6. It is pointed
out that thereafter, based on an interim order passed by
this Court on 14/10/2008 in this writ petition, an amount
of Rs.1,31,327/- has been paid.
4. Ext.P6 filed before the Consumer Forum was
transferred to the Deputy Chief Engineer in the light of
Section 127 of the Electricity Act, 2003 which resulted in
Ext.P10 Order. The learned counsel for the petitioner
submitted that all the points raised by the petitioner have
not been considered in Ext.P10. It is pointed out that the
allocation of the unauthorised connected load is not
correct. The Deputy Chief Engineer has accepted the
contentions of the concerned officers without verifying the
real facts. My attention was invited to Regulation 27A(4)
(i) of the Kerala Electricity Supply Code, 2005 which
provides as follows:-
“In case of prejudicial use of power supply,
the Licensee should draw mahazar at the time of
inspection when such prejudicial use is detected.
The mahazar shall be drawn in the presence of the
Consumer or his representative along with two
other witnesses who shall sign the mahazar
report. One copy of such report shall be handed
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over under acknowledgment of the Consumer or his
representative.”
The learned counsel for the petitioner submitted that this
is a mandatory process even under the earlier regulations,
and the absence of mahazar vitiates the order itself.
5. Whether there was any unauthorised connected load
has to be assessed only on the basis of the materials. The
Deputy Chief Engineer has really presumed that there was an
unauthorised connected load whereas the petitioner
maintains the stand that the 40HP motor was never used.
Herein, the report, Ext.P3 is relevant. It is not clear
from the order Ext.P10 whether the report was available
before the Deputy Chief Engineer.
6. The respondents have filed a counter affidavit
supporting Ext.P10 order.
7. The learned counsel for the petitioner submitted
that as the relevant materials have not been considered by
the Deputy Chief Engineer, the order cannot be supported.
8. The question is whether actually there was any
unauthorised connected load. The internal reports if any
of the officers are not discussed in Ext.P10. Ext.P3 has
also not been brought to the notice of the Deputy Chief
Engineer. The conditions of supply and the regulations
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which are in force prior to the Supply Code also, according
to the learned counsel for the petitioner, necessitate for
the drawing of a mahazar and supply of the copy of the same
to the petitioner also. But this was never done.
9. All these are matters for the Deputy Chief
Engineer to consider afresh. In that view of the matter,
Ext.P10 is quashed. There will be a direction to seventh
respondent reconsider the matter with notice to the
petitioner. All the relevant materials including the
original of Ext.P3 will be called for and after hearing the
petitioner, appropriate orders will be passed within a
period of four months from the date of receipt of a copy of
this Judgment. Ultimately, if the petitioner is found
entitled for refund, the amount will be refunded within a
reasonable time.
The writ petition is disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
ms