Abdul Azeez vs Kerala State Electricity Board on 4 January, 2002

Kerala High Court
Abdul Azeez vs Kerala State Electricity Board on 4 January, 2002
Equivalent citations: AIR 2002 Ker 188
Author: K M Shafi
Bench: K M Shafi

JUDGMENT

K.A. Mohamed Shafi, J.

1. In this O.P., the challenge is against Ext. P10 order passed by the second
respondent refusing to refund Rs. 8103/- with interest.

2. Petitioner is the owner of a small-scale industrial unit engaged in the
manufacture of ice blocks. The unit was established in 1992 and the commercial
production started from 3.9.1992. He was entitled to electrical energy tariff as per
Ext. P1 order passed by the first respondent, Electricity Board. Since there was
acute shortage of electrical energy, the first respondent issued Ext. P3 notice dated
25.3.1997, introducing 50% power cut to industrial consumers using 10 Kw of power
and above with effect from 18.3.1997 and accordingly fixed the monthly quota of the
petitioner from March 1997 at 12,625 (P) plus 126 (L) Kw with penal consequences.

3. Subsequently Ext. P6 notice dated 17.6.97 was issued by the first respondent
to the petitioner introducing 75% power cut to industrial consumers using 10 Kw of
power and above with effect from 17.6.1997. As per Ext. P6, the weekly quota of the
petitioner is fixed as 1425 plus 14 (light) Kwh. It is also directed that the daily
consumption shall not exceed 1/7th of the weekly quota. Ext. P6 contained penal
provisions for consumption of excess energy. The respondents issued Ext. P4 bill for
the month of June 1997 for Rs. 14,814/- being energy charges for the total energy
consumption of 9918 units. In Ext. P4, penal charges @ Rs. 2.70 per unit for 3605
units out of the total energy of 9918 units consumed for the month of June 1997 is
levied. The levy of penal charges @ 2.70 per unit for 3605 units out of 9918 units
which was less than the monthly quota fixed for the month of June 1997 by the
respondents is challenged by the petitioner before the Executive Engineer, second
respondent herein. He also filed O.P. 12930 of 1997 and this court passed Ext. P9
judgment dated 9.11.2001 directing the second respondent to consider and pass
appropriate orders on the appeal preferred by the petitioner against Ext. P4 notice in
the light of the contentions of the parties and observations made in that judgment, after
giving an opportunity to the petitioner to be heard. Accordingly the second respondent
passed Ext. P10 order upholding the penal charges in Ext. P4 bill.

4. In Ext. P10, the second respondent has held that the quota allotted for 2 weeks
was 6313 units for which 50 paise per unit was assessed since the petitioner comes
under SSI unit and the excess over quota was assessed at Rs. 2.70 per unit and the
excess over quota assessed at higher rate is in order. It is further observed that
“Assessment made for the consumption of excess over weekly quota will not be
withdrawn. It may be true the weekly quota fixed for the petitioner is insufficient
even for 2 days. But the Board cannot impose different rates according to the nature
of implementation of power cut. Since the power situation was worsening day by day
during the period in question, board had to take stringent to reduce power
consumption.”

5. The counsel for the petitioner vehemently submitted that the rejection of the
claim of the petitioner to assess the entire energy consumption at the concessional
rate of 50 paise per unit and the imposition of penal charge at Rs. 2.70 per unit for
3605 units is absolutely illegal and contrary to the directions of this court made in Ext. P9
judgment. In paragraph 6 of Ext. P9 judgment, this court has observed as follows:

“I find some merit on the contention of the petitioner that by Ext. P6 notice dated 17.6.97
the consumption already made prior to the date of notice cannot be subjected to the restriction
of weekly quota. The petitioner has filed Ext. P9 appeal challenging Ext. P4 bill. The second
respondent shall consider and pass appropriate orders in Ext. P9 appeal taking into account the
contentions of the petitioner and also the observations in this judgment. Though Ext. P9 appeal
was filed as early as on 23.7.97, neither side has brought to my notice about the disposal of the
appeal”.

6. It is clear from Ext. P10 order passed by the second respondent that he has
not taken into consideration, the above observation made by this Court regarding the
contentions raised by the petitioner.

7. It is not in dispute that the petitioner being a consumer for the SSI unit is
entitled to tariff at 50 paise per unit.

8. The contention of the respondents is that by introducing power cut, the intention
of the first respondent board was to restrict and regulate the use of energy provided
as per the quota spread over for the entire month. But the petitioner consumed the
entire quota allotted for the month within few days which is contrary ti the intended
restriction and regulation of energy as per the power cut introduced by the respondents.
The above contention raised by the respondents is devoid of any merits. It is clear
from Ext. P3 notice dated 25.3.97 that only a monthly quota is stipulated after introducing
50% power cut to consumers like the petitioner from the month of March 1997. Nothing
is stated or indicated in Ext. P3 that the quota of energy stipulated per month for the
petitioner should be consumed by spreading over the entire month in a uniform manner.
The petitioner’s case is that since for production of the ice cubes all the machineries
installed had to be worked together, he could work the unit only for few days in a
month by consuming the entire quota of energy allotted to him for that particular
month and he never exceeded the total quota fixed for him in any particular month.
Therefore, according to him, he is liable to be charged only at 50 paise per unit and the
levy of penal charges for a portion of the energy consumed by him within the monthly
quota is absolutely illegal.

9. It is petition to note that in Ext. P6 notice issued by the respondents dated
17.6.1997, introducing 75% power cut it is specifically stated that the weekly quota is
fixed at a particular rate and the daily consumption should not exceed 1/7 of the
intention of the respondents is manifest that the weekly quota of energy stipulated
therein should be consumed only on average daily basis and the consumer is not
entitled to exceed 1/7th of the weekly quota per day. There is absolutely no such
stipulation either express or implied in Ext. P3 notice issued by the respondents imposing
50% power cut from March 1997 onwards. By careful reading of Ext. P3, such an
intention to make the monthly quota spread over the entire month with the daily available
consumption cannot be presumed to be intended by the respondents. It may be that
long after issuance of Ext.P3 and while issuing Ext. P6 notice on introduction of 75%
power cut, the respondents might have realised the necessity to direct the consumers
to consume energy on an average basis per day, of the weekly quota in order to
facilitate equal and even distribution of energy to all consumers. But due to the mere
fact that such a stipulation is made by the respondents in a subsequent notice issued
by them long after Ext. P3 notice Ext. P3 notice issued by them it cannot be contended that the
respondents had intended in Ext. P3 notice also that the monthly quota of energy
should be consumed by the consumers in an average basis per
day. Therefore the levy of penal charges at Rs. 2.70 per unit for 3605 units consumed
by the petitioner for the months of June 1967 is absolutely illegal and unsustainable in
this case.

10. It is settled law that penalty can be imposed only prospectively and not
retrospectively. Therefore on the basis of Ext. P6 notice issued by the respondents on
17.6.97, the petitioner cannot be subjected to penal charges for the energy consumed
by him within the monthly quota only on the ground he consumed the energy
within a few days without making it spread over for the entire month.Hence this O.P.
is allowed, Ext. P4 bill and Ext. P10 order to the extent they levied penal charges at
the rate of Rs. 2.70 per unit for 3605 units is set aside and the respondents are directed
to refund the amount of Rs. 8103/- collected from the petitioner as penal charges to
the petitioner within two weeks from this date with interest @ 9% per annum from
this date, till payment.

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